The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.