The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This evening, in Texas v. Pennsylvania, a unanimous Supreme Court refused to grant Texas Attorney General Ken Paxton an injunction or other relief that would bar the selection of presidential electors in Georgia, Michigan, Pennsylvania and Wisconsin. As detailed in the just-released order, seven justices would deny the Texas AG's Motion for Leave to file a complaint, citing a lack of Article III standing. Justices Alito and Thomas, citing their long-standing belief that the Court lacks the discretion to deny the motion, would have granted the motion, but would have provided Texas with no other relief. In other words, not a single justice believed Texas deserved the extraordinary relief it sought.
The Court's order reads:
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.
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.
This puts an end to Texas Attorney General Ken Paxton's effort to upend the results of the November election. It should also put an end to the efforts by the Trump campaign and its allies to delegitimize or otherwise challenge the election results.
This result was not a surprise. As I indicated in my prior posts on AG Paxton's initial filing, the intervening briefs, amici, state defendants' responses, and Paxton's feeble replies, this case never had merit. As the Court concluded, Texas could not satisfy the requirements of Article III standing to challenge the election procedures utilized by other states to select presidential electors. What is more, even the two justices who believed the Court was obligated to hear the case–arguably the Court's two most conservative justices–did not believe Texas was entitled to the extraordinary relief it sought, relief which would have been necessary for AG Paxton's last-ditch effort to have any result on the electoral college. AG Paxton's office submitted transparently weak arguments, and the Court summarily dispatched them.
It is important to underscore that the Supreme Court's decision is, for all practical purposes, unanimous. Justices Alito and Thomas have long held the view that when a state seeks to invoke the Court's original and exclusive jurisdiction, the Court is obligated to hear the case. (See, e.g., their dissent from the Court's refusal to hear Arizona v. California.) This is a serious argument, which Ilya Somin discussed here and which I suspect may be correct. So while the vote on Texas' Motion for Leave was technically 7-2 on this basis, the Court was 9-0 in rejecting AG Paxton's attempt to get any sort of actual relief, such as an injunction preventing states from appointing presidential electors. Not a single justice was willing to express any sympathy for any aspect of Texas's legal claims.
As for the rest of Justice Alito's statement, what "other issue" might he be referring to? I suspect this is a reference to the Pennsylvania litigation that is still pending, about which Justice Alito previously issued a statement.
On the rest of the Court's order, it is significant that the Court did not merely note the lack of standing, but also specified that Texas had not "demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." In other words, one state cannot invoke the jurisdiction of the federal courts to challenge another states election processes, even when it concerns the selection of presidential electors. This should discourage other states from trying such things in the future, whether to raise Electors Clause claims, Equal Protection claims, or anything else.
As I have already noted, this should not have been a surprise to anyone who was paying attention. The briefs submitted by AG Paxton's office were weak on the facts and weak on the law. In some respects, as I noted in prior posts, they were downright embarrassing. The briefs filed in support of Paxton's claims were, on the whole, not much better. Those attorneys who were willing to file briefs that actually embraced the substance of Paxton's claims should be particularly embarrassed. If Paxton's own Solicitor General would not sign on to these briefs, why would the SG of Missouri or Utah?
There remains a serious legal question about the constitutionality of the Pennsylvania Supreme Court's decision to extend the deadline for the receipt of absentee ballots beyond the statutory deadline. This decision has much in common with the decision of the Florida Supreme Court that was vacated by a unanimous Supreme Court in 2000. Unlike in 2000, however, the outcome of that question could not effect the election result. Nonetheless, if the Court wants to consider that issue, there are multiple pending petitions for certiorari (here, here, and here) that it could grant in the normal course. If anything, the legal events of the past few weeks should establish that the issue raised by the Pennsylvania Supreme Court's actions are capable of repetition yet could evade review if not addressed by SCOTUS.
The #Kraken may have been released. Tonight's Supreme Court order should also have put it out of its misery.
P.S. Also in tonight's order, the Supreme Court also granted certiorari in Goldman Sachs Group v. Arkansas Teacher Retirement System.
UPDATE: I also recommend this analysis of the order by Howard Bashman at How Appealing. Among other things, he notes that Justice Alito's statement is styled as just that–a "statement"–indicating it contains separate views and does not signify any dissent from the Court's order.