Can the Supreme Court Unite to "Decimate" Texas' Original Jurisdiction Case?

Could the Chief bring everyone together for a single merits ruling in a short time?


Tom Goldstein writes that the Supreme Court should do more than dismiss Texas's original jurisdiction case in a summary order. He says that the Supreme Court should "decimate" the motion with a written opinion.

It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas' request. . . A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court's bar on whom the justices depend to act much more responsibly.

Tom adds that the people supporting the President may be swayed by a unanimous decision from a conservative Supreme Court.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

I am skeptical.

First, I doubt the Supreme Court would be able to muster a majority opinion that actually engages with the merits. Several Justices have already expressed support for the independent state legislature doctrine. A sound rejection of Texas's case could foreclose further refinement of that theory in the Pennsylvania case. And some errant dicta in a standing analysis could mess up other, related original jurisdiction cases. Moreover, the question of mootness for election challenges is in need of refinement. In any event, the Supreme Court often makes a hash of constitutional law when it rushes. It shouldn't try so here.

Second, obtaining unanimity in a short time crunch has historically not fared well. Youngstown was decided a month after it was argued. And the 6-3 ruling yielded a majority opinion, five concurrences, and a dissent. Bush v. Gore, decided on an even tighter deadline, was far more fragmented. Perhaps the only outlier, in recent memory, of a rapid unanimous decision was Dames & Moore v. Regan. The important, but non-ideological case was decided within a week.

Third, Tom suggests that Trump supporters "will listen" to a five-page Supreme Court opinion. What about the last four years have taught us that a unanimous Supreme Court decision would convince people that the election was fair? Over the past week, I have done many interviews criticizing Texas's case. And I routinely receive emails from well-meaning people who correct my understanding of constitutional law. They know better. A 9-0 decision will not change hearts and minds. The Supreme Court cannot do that. No, not even Brown v. Board fo Education, which was met with violent, massive resistance. In some regards, a Supreme Court decision could create an even bigger backlash.

Finally, John Roberts is not Earl Warren. Hell, he isn't even Warren Burger. During his tenure, Roberts has tried, unsuccessfully to unite the left and right of his Court. And according to press reports, he has created rancor among the Justices. That history makes uniting the Court much more difficult.

I fully expect the Court to deny the motion for leave. I'm not sure on what grounds. I think the Court would be prudent not to try to settle this national debate in any way. It won't work.

Update: About an hour after I wrote this past, the Supreme Court denied Texas's motion with a three-paragraph order.

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Proving the point that complete unanimity was impossible, Justices Alito and Thomas continued their perpetual dissent that the Court lacks discretion over original jurisdiction cases.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Alito's statement is a bit cryptic. He would grant Texas's motion for leave, would deny Texas any relief, but won't say why he is granting Texas relief. The implication is that Texas didn't meet its burden of proof, or something to that effect. But Alito does not say why.

Contrary to Tom Goldstein's prediction, the Court did not opine on the validity of Texas's claim. And, Justice Barrett did not signal her recusal.

Finally, to signal how mundane this order was, in the same order, the Court granted certiorari in a mundane securities case.

NEXT: Potential Constitutional Hardball in a Republican-Controlled Senate

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  1. Fifth, if Texas only won 9/10ths of what they’re asking for, they’d be pretty happy.

    1. Yeah, I’ve sorta given up the fight about using the original meaning of ‘decimate.’

  2. United States v. Nixon is an obvious counter example. Three weeks, unanimous decision. The decision has held up fairly well too, albeit we know it was a mess behind the scenes.

    1. The bottom-line decision has held up because it was right, but the opinion was a mess in various areas.

  3. Of course the Court should toss this anti-democratic, near treasonous suit with a forceful opinion and a unanimous decision. To do otherwise would suggest that at least one Justice thought there was merit in the plaintiff’s steaming pile of legal garbage.

    And no, such a ruling would not convince the delusional Trump supporters who somehow cling to a fiction that is so unreal it questions the sanity of those who believe it and the integrity of those politicians and lawyers who support the litigation. But a unanimous ruling would restore some luster to the Court, whose current composition is compromised by one Justice serving a stolen seat, one Justice whose past behavior was white-washed by the Republican Senate and one Justice whose seating was accomplished only by the group of Republicans showing that what they said in the past about confirming a Justice in a presidential year was a blatant, fantastic lie.

  4. ” Finally, John Roberts is not Earl Warren. Hell, he isn’t even Warren Burger. ”

    ‘Chief Justice Roberts
    falls short of clinger standards’
    — Sage Of South Texas

    1. Not a John Roberts fan for many reasons (e.g., Shelby County being the dumbest decision in the last 50 years having no basis in the plain text of the Constitution or its history), but saying that he is no Warren Burger (with Burger being the one who should be flattered) is laughable. Roberts is a smart legal mind if a mendacious one.

    2. Double quotes, single quotes, and a long dash even.

      You clever Dick, you.

  5. Gotta love this line from Josh’s post:

    “Over the past week, I have done many interviews criticizing Texas’s case. And I routinely receive emails from well-meaning people who correct my understanding of constitutional law.”

    I mean if people are not convinced by South Texas Law Professor Josh Blackman – known for literally never disagreeing with a legal position of the Trump administration* – there is no way a unanimous Supreme Court could do the trick!

    *This case does not count as it is Trump personally and/or his campaign

    1. Well, that settles it! If people are not convinced of Josh’s incompetence by an anonymous commenter, there is nothing that could do the trick!

      1. I’d say Josh does a pretty solid job of establishing his lack of competence without any assistance on our end.

    2. They’re not well-meaning people.

      They’re confederate-flag-fondling bigots. They’re lethally reckless, superstitious rubes. They’re belligerently ignorant, obsolete imbeciles. They’re misfits and can’t-keep-up losers.

  6. Should the Court duck this issue, (As I fully expect they will.) expect massive election law reform in all the ‘red’ states, intended to take their election laws and cast them in unbreakable stone, so that nothing like this can happen again. For instance, the presence of election observers during voting mandated, not merely permitted.

    1. Ducking the case or not, expect massive voter suppression efforts in all red states.

      1. Well, I certainly expect Democrats to continue calling anything even vaguely election related that they don’t like “voter suppression”. But that’s been going on for years.

        1. Brett Bellmore : “Well, I certainly expect Democrats to continue calling…. (etc)”

          And I certainly expect your continued hysteria over a handful of election measures taken in response to a deadly countrywide pandemic. Why? Because that’s the strawman you’ve chosen to tar an election your candidate lost.

          After all the “voting fraud” allegations you initially championed proved lies and nonsense, you cast around for any excuse to continue to denigrate the 2020 election. And here we see the microscopic grounds you’re left with:

          “For instance, the presence of election observers during voting mandated, not merely permitted.” As if they were ever denied. Or your continued rage against a Pennsylvania Supreme Court ruling that affected a few thousand votes. Sure, all your complaints put together barely fill a thimble, but it still allows you to claim Trump was “cheated”. Sure, the claim is ludicrous, but you still get to say it. That’s all that’s important. You get to say it…..

    2. “For instance, the presence of election observers during voting mandated”

      Are these election observers to be government-provided and -controlled observers, conscripted and micromanaged observers, robotic observers, or . . . what, precisely?

      Your lack of understanding and experience in this field seems comprehensive.

  7. “And I routinely receive emails from well-meaning people who correct my understanding of constitutional law. They know better.”

    I mean, they actually might. Most non-lawyers know government mandate is. Most law students know the difference between the federal government’s commerce powers and state police powers.

  8. Goldstein’s idea is impossible, silly, and pernicious.

    The appropriate death of this lawsuit should, and I think, will be (1) a denial of the motion for injunctive relief, probably before Monday’s meeting of the electors; (2) a nonprecedential one-sentence per curiam order of dismissal on grounds of mootness thereafter, at any time before the January 6 joint session of Congress at which VP Pence will preside over the formal counting and receipt of the electoral vote, which will set up the Inauguration later that month.

    This piece of crap lawsuit doesn’t even deserve the dignity of a direct denial of the motion for leave to file the original-jurisdiction complaint.

  9. Disclaimer: I’m not any kind of a lawyer. As a little L libertarian, I don’t like either the d’s or the R’s, but I have followed the anecdotal stories and the statistical analysis of the 2020 Election carefully.

    If SCOTUS doesn’t address the blatant fraud in SOME fashion, I fear we will never have an honest election ever again. Why shouldn’t the “political parties” lie, cheat, and steal in ANY election they can? NO ONE is ever held to account, especially the rich and powerful politicians and bureaucrats. Maybe a few peons will get their wrist slapped but that’s about it.

    Corrupt elections have been a national joke since the JFK’s dad stole the Presidency from Nixon. We joke about the “graveyard vote”, non-citizens voting, and all sorts of scams around registering to vote. Never mind, “harvesting” the nursing homes, homeless, and felons. And don’t forget the “walking around money” that gets distributed.

    No, if SCOTUS punts on this, then it sends the wrong message to the power players to clean up their act. If SCOTUS was to disqualify the five or so States from sending electors, then that, by itself, would send a STRONG message about “law and order”. Anything less, means that the Republic is lost until the next revolution.

  10. Why would they? I of course want this this whole election fraud liefest to die, but the Rs are in a position that they are only 5 unaccountable votes from vanquishing the Democratic party. Why would they not take the final step to win?

  11. Breaking news-

    In least surprising news ever, SCOTUS has DENIED leave to file the bill of complaint.

  12. Also?

    I called it – decision by end of day today.

  13. Well, the answer turned out to be no the couldn’t/didn’t fee the need to.

  14. Contrary to Tom Goldstein’s prediction, the Court did not opine on the validity of Texas’s claim.

    Where exactly do you see Goldstein making a prediction?

    1. Josh, like so many other knee-jerk partisans, needs a refresher on the difference between is and ought.

  15. Hey, Republicans . . . tired of winning yet?

    Where’s the kraken?

    How’s that Elite Strike Force doing?

    Trump Election Litigation: Every bit as successful as Trump Foundation; Trump Steaks; Trump University; Trump Casino; Trump Airlines; conservatives in the culture war; and White, male, right-wing blogs.

    1. Well, at least you were charitable enough to, in this list of failures, not include “every one of Trump’s marital vows.”

      You’re a better man than I . .

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