Making Sense of Texas v. Pennsylvania

President Trump doesn't like standing doctrine, and thinks that Justice Alito and Thomas ruled for him.

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Yesterday evening, the Supreme Court issued an order Texas v. Pennsylvania. No, the Supreme Court did not "decimate" the President's claims of voter fraud. The short order tossed the case on jurisdictional grounds, and said nothing about the merits.

In the wake of the decision, lawyers closely parsed Justice Alito's separate statement, joined by Justice Thomas. I found it cryptic. I encourage you to read Howard Bashman's meticulous analysis. After some reflection, I've concluded that Justice Alito wanted to say more, but didn't, and instead put out an ambiguous statement that left his options open. But in doing so, Alito had to have known that President Trump would see any dissent as a signal that Trump really won. I'm sure QAnon will see signals buried in the statement. Alito either didn't know Trump would misread his order, or didn't care. I lean towards the latter.

The decision has brought a predictable raft of tweets from the President. Here is a smattering.

First, before the Court decided, Trump repeated his common refrain: "wisdom" and "courage" are on his side:

Second, after the decision, Trump tweeted that the Court lacked "wisdom" and "courage."

Third, Trump continued his skepticism of "standing" doctrine.

As a matter of first principles, he's not wrong about standing doctrine. In the abstract, it is unsatisfying to admit the government broke the law, but because no one was injured, that lawlessness goes unremedied. I routinely have to explain standing doctrine to the popular press, and people don't get it. State courts can decide cases of great import without having to establish Article III standing. And foreign courts can handle these sorts of disputes very quickly. Think of the recent U.K. case about the proroguing of Parliament.

Fourth, the necessary implication of a standing ruling is that the Court did not weigh in on the merits.

Fifth, non-lawyers will simply see a standing ruling as a "dodge."

Sixth, predictably, people misread the Alito/Thomas statement. Again, the two Justices could have ignored their longstanding beef about mandatory jurisdiction just this once. But they didn't. And they could have made clear they would have denied all relief. But they didn't.

The Court could have structured the opinion to avoid any dissent. For example, the Court could have granted the motion for leave, but denied any relief on the exact same jurisdictional grounds. I suspect Thomas and Alito would have gone along with that request. The Chief may not have been willing to set a precedent about granting motions for leave. If so, that choice was pennywise but pound-foolish.

NEXT: "SF Supes Step in First Amendment Quagmire in Seeking to Update Newspaper Contracts"

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  1. If the plan is to delay until it’s too late, then the tactic is sound. That’s been the plan all along. They only have to get away with it a little longer.

    1. Maybe not, Ben — The Watergate Burglary was on June 17, 1972, with Nixon being sworn in the following January, hearings that summer, Agnew resigning that October, and Nixon resigning March 9, 1974.

      1. August 9, not March 9.

      2. I don’t think Biden has any definite plan to be president all 4 years anyway.

        Maybe he resigns in February after pardoning Hunter and others.

        1. How’s the weather on your planet? It’s not bad back here on Earth.

          1. Ben hasn’t left his grandma’s basement in 7 years. What would he know about the weather?

          2. Cloudy, with increasingly long periods of darkness starting in the evenings and ending at about dawn.

            Maybe you can explain what specific knowledge you have that Joe intends to serve out his entire four year term at his advanced age.

            1. As with everybody else, Joe has no way of knowing how long he will live. He could live to be 100, or he could die tomorrow. So could you.

              1. I haven’t had (at least) two brain bleeds, one of which (by all reports) was damn near fatal.

                1. You’re immune from those.

            2. I know things that you don’t know.

            3. Maybe you can explain what specific knowledge you have that Joe intends to serve out his entire four year term at his advanced age.

              Did you think Trump would? Because I’m getting a bit of a double standard vibe from you.

              1. Trump may or may not serve out his term. I have no information either way.

                Biden, however, said this: https://www.thestreet.com/mishtalk/politics/biden-says-he-would-resign-if-a-moral-dispute-with-harris-arose

                “Like I told Barack, if I reach something where there’s a fundamental disagreement we have based on a moral principle, I’ll develop some disease and say I have to resign.”

                1. I’m actually kind of annoyed about pulling that quote out of context, because this sort of thing gets done to Trump all the time.

                  He was asked what would happen if he and his VP had a fundamental moral disagreement. And explained that, when he was VP, if that had happened he’d have made up some excuse to resign.

                  It’s obvious he meant that he’d expect the same of Harris: Her coming up with some excuse to resign.

                  Now, I personally suspect he’s not going to serve out a full term, for a variety of reasons, but it’s only a suspicion, and that out of context quote isn’t one of the reasons.

                  1. This was obvious to me, too, but right wing radio was content to facetiously feign Biden would use a disagreement with Harris for himself to resign.

                    Put me down for he won’t finish 4 years, but I don’t think Trump would have, either.

                    Anyway, Boomers were a 20 year wide generation, and will have held the presidency for 32 years minimum. Just die already.

                  2. I only saw the quote. (Listening to politicians is a waste of time. ) The additional context is appreciated.

                    1. Maybe you won’t be so eager to believe obvious nonsense next time, but I doubt it.

                    2. 1. Knowing wherever you saw the quote took it out of context should result in you not trusting that source anymore.

                      2. The fact that context mattered shows that it is more a waste of time to listen to unreliable sources than to listen to politicians.

                    3. The context is directly below the quote.

                      In the interview Biden says that when he was VP under Obama, that if he had a moral disagreement with Obama, he would have developed a disease and resigned.

                      This,

                      If he has one now with Kamala Harris, he as president, would resign.

                      is completely made up by the author, one “Mish.”

                      So it’s hard to believe you “just saw the quote” at the link and didn’t see the context.

                    4. So it’s hard to believe you “just saw the quote” at the link and didn’t see the context.

                      Ben, whose favorite smear is calling everyone with whom he disagrees a liar, is caught red-handed in a blatant lie? I am shocked!

          3. “How’s the weather on your planet? It’s not bad back here on Earth.”

            Right now it is just above freezing, 98% humidity and with what is too wet to be called “mist” yet not wet enough to be called “rain”.

            In other words, rather miserable.

        2. You know Ben, I was wondering *how* I could possibly have made a mistake like that when (a) I knew it was in the summertime and (b) I checked anyway.

          I’m wondering if it is a premonition. That Biden will resign in March.

          1. And the next piece of the puzzle drops into place.

  2. “I routinely have to explain standing doctrine to the popular press, and people don’t get it.”

    No, we get it. We just don’t like it. Don’t pretend disapproval is incomprehension, and if we just understood standing doctrine, we’d fall in line and love it.

    1. Standing is a fundamental aspect of separation of powers, and was usually and generally favored by judicial conservatives. Unfortunately, there are almost none of those left.

      1. The need to have some sort of standing doctrine doesn’t excuse the standing doctrine we actually have, which seems to be tailor made to shield routine constitutional violations from review.

        1. I wonder why, after 4 years of silence on the topic, you’re suddenly angry about the standing doctrine again…

          1. Because it came up.

          2. I wonder why, after 4 years of silence on the topic

            Now THERE’S a man who keeps score!

        2. I agree — and as Justice Thomas has said, the law has to be understandable to the average person in order for it to be respected. Joe Sixpack can’t fathom why routine constitutional violations are exempt from review — or the value of even having a constitution if they are.

          In the abstract, it is unsatisfying to admit the government broke the law, but because no one was injured, that lawlessness goes unremedied.

          Respectfully, Professor Blackman, people were harmed!

          Instead of getting the president we voted for — and who won in a landslide — we have a paid ChiCom agent and his Communist sidekick. That’s real harm.

          Now as to if it constitutes “harm” under the auspices of some asine legal definition, I don’t know — but in human terms, it’s real harm.

          1. Instead of getting the president we voted for — and who won in a landslide — we have a paid ChiCom agent and his Communist sidekick. That’s real harm.

            Thus speaks the vast majority of the Republican Party.

            1. . . . and, in general, the Volokh Conspiracy.

              Cowards intimidated by Donald Trump and his base.

              On the bright side, this won’t change much with respect to the culture war or political trends.

            2. Wait until they find out about McConnell’s wife and the Secretary of Transportation!

            3. And that, bernard11, is why SCOTUS ought to have had a full hearing. If for no other reason than because we believe this.

              1. If the Supreme Court was at the beck & call of your whack-job beliefs, Ed, it wouldn’t have time for any real business.

                There’s a homeless guy I pass every day walking to work. He always sits at the same corner, continually muttering dark & incoherent gibberish. Maybe he should set the SCOUS docket? He “believes” a lot of stuff too….

                1. The amount of work the Supreme court has been doing has been declining for decades, a not surprising consequence of being in charge of their own workload. So it’s not like they lack the time to take a questionable case when EIGHTEEN STATES REQUEST IT.

              2. Maybe you should ask yourself why you believe all that. Use those research skills you’re always bragging about.

                The courts have spent plenty of time on this Trumpist BS. If you continue to believe made-up crap nothing will change your mind.

          2. If you think average Americans are confused or surprised to learn that Texas can’t make a federal judge tell Pennsylvania that it ran its elections wrong, you have a lot less respect for their intelligence than I do.

          3. I don’t recall either Brett or Dr. Ed being upset when one of the emoluments clause lawsuits was thrown out on standing grounds.

          4. Ed, you can say it 10,000,000 times and it won’t make it true. Trump didn’t win in a landslide. He didn’t win at all. He got his ass kicked.

            And the ironic part is that he was ok as a president. The irony is that he lost because of erratic behavior and flagrant dishonesty. The behavior he’s exhibiting now is what got us Progressive Joe.

            Trump is a fucking idiot and it’s time for him to go away.

            1. Take even an undergrad class in statistics and then show me how Biden’s numbers are possible…

              1. The more salient question is why you think Biden’s numbers inconsistent with a fair election, given the *totality* of *real* information that is available. The class most relevant to answering it would be one in cognitive psychology.

              2. The “statistical” argument against the vote counts for Biden cut both ways, Ed. The base assumptions in that “argument” make Trump’s in-person tallies just as statistically “impossible.”

                That’s part of how we know that the base assumptions are wrong. That and, uh, independent observable evidence.

              3. Ed, I’m a degreed engineer. Worked for 35 years in a technical field. I get stats just fine.

                Stats are used to analyze data. They aren’t used to prove things.

              4. Take even an undergrad class in statistics and then show me how Biden’s numbers are possible…

                No, Ed. You don’t get to hand out assignments. You go first. You explain, with real sources, why Biden’s numbers are impossible. And not a lot of idiocy about getting 600 votes out of 100 cast.

                Oh, and I’ve had plenty of statistics classes.

                Real sources, real arguments, real analysis.

            2. He didn’t win by a landslide, and he didn’t get his ass kicked. It was actually a fairly close election by historical standards.

              But multiple states did have state actors other than the legislature decide that they were suddenly entitled to violate state election laws, and whether that’s legit IS kind of an important question to settle. Because it’s not like this was a one time glitch in the system; If the executive and/or judiciary of a state can set aside election laws any time they feel like it, our elections going forward are going to be a stinking mess.

              1. It’s legitimacy is not legitimately in doubt. Legitimacy is not some idiosyncratic point of view; we don’t all have our own legitimacy, it’s an institutional attribute.
                In this case, the courts, local officials in charge of elections and people with expertise and experience in elections.

                Your carping does not change that objective fact.

        3. ” …to shield routine constitutional violations from review.”

          Yeah, like violations of the emoluments clauses, for instance.

      2. “Unfortunately, there are almost none of those left.”

        There are quite a few on the Supreme Court. Which is where it counts.

    2. I don’t like it either, but especially for justiciability you go to court with the law that is, not the law you wish to be.

      1. And then they kick you out and deny you justice because of their policy of kicking people out and denying them justice.

        1. What injustice Ben. WHAT INJUSTICE? The Trumpers keep screaming about fraud and unconstitutional behavior, but when it’s time for it to go under oath it’s all arm waving and kraken bullshit.

          The left completely embarrassed themselves in response to 2016. Somehow, the right has one-upped them on the self humiliation scale.

          1. Look, just because you don’t freaking care about election laws being grossly violated in multiple states doesn’t mean it’s “kraken bullshit”.

            1. There you go again. Arm waving and big assertions. But nothing even approximating evidence, or anything specific.

              The kraken thing turned out to be bullshit. There was nothing there. And you’re demonstrating that with vague assertions.

              1. Personally, I think executive branch officials and court judges changing election rules is a violation of the law.

                On the other hand, I don’t think any of that is likely to have changed the election outcome and in any case the time to challenge that was before the election, not after you lose.

                I don’t think trump will push things to the point that he has to be forcefully evicted from the White House, but I don’t expect him to gracefully concede (which is what he should do at this point) either.

            2. It’s not even real Kraken. It’s pig bunghole.

              But it’s all been a raging success. Trump’s Qult loons have sent well over $200 million to Trump and Powell based on this pig bunghole.

            3. Begging the question, Brett.

            4. @Brett Bellmore: You say the election laws were, not just violated, but *grossly* violated. So why have the state supreme and lower courts uniformly rejected every challenge? Are those courts incompetent? Are they corrupt? All of them?

        2. There is a famous (probably apocryphal story) by Learned Hand, one of the greatest U.S. jurists ever:

          I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job. My job is to play the game according to the rules.”

          You would not want to live in a country where the judiciary feels free to do “justice” without being constrained by the law and the rules of procedure.

    3. Standing is a two edged sword. If they applied the same standing criteria Mass. V EPA would have been dismissed.

      In a few months when Biden re-“ratifies” the Paris accords you will see a raft of lawsuits against the states (and corporations) for not implementing the Paris targets which will be purported to be the law of the land. Hopefully they will be quickly squelched by lack of standing.

      1. What in the Paris Accords make you think anyone in the U.S. can sue a company for failing to implement the targets?

      2. And MA Governor Charlie Parker wants to impose a Total Communist Incursion and triple the gas tax on the entire East coast.

    4. No, your disapproval is pretty clearly “incomprehension.”

      Brett, the theory behind the Texas suit, if it were sufficient to give Texas “standing” to challenge Pennsylvania’s election law changes, would give all of the other states exactly the same “standing” to sue Texas over its own election law changes. Remember? Republican election officials across the country made all kinds of decisions about ballot dropboxes, “signature matching,” in-person voting, etc., that tended to favor the “right type” of voters – thereby increasing their voting power and diluting that of “blue states,” in exactly the same way.

      You shouldn’t want to open the door to these kinds of lawsuits, because it would be tit-for-tat, lawfare chaos. The one and only reason you’re pouting like a preteen who didn’t get her Barbie of choice is that this extraordinary expansion of interstate lawfare could have helped your candidate in this election cycle. Like Trump, you have no sense of the second- or third-order implications of a short-sighted grab for power. You’d plunge our country into chaos in order to elevate a notorious con man.

      Good god, man. Could you at least idolize an authoritarian who was competent?

      1. “Brett, the theory behind the Texas suit, if it were sufficient to give Texas “standing” to challenge Pennsylvania’s election law changes, would give all of the other states exactly the same “standing” to sue Texas over its own election law changes.”

        And I’m fine with that. Probably because I started out politics as a third party voter, I’ve never been under this silly illusion that only one party is a criminal conspiracy. They both are.

        If you’re waiting for a sort of violation only one party is guilty of, before starting to clean up the system, you’re going to have a long, long wait.

        1. Both parties are a *criminal conspiracy*.

        2. You have convinced yourself of something. No outside institution or authority or explanation can penetrate.
          Furthermore, you now declare that all these experts and authorities are abetting or joining many and various criminal conspiracies by saying you’re wrong.

          You’ve gone beyond closed mindedness to a bunker mentality that has never ended anywhere good for anyone.

        3. And I’m fine with that.

          No you’re not. You’re lying again.

          There was a lot of discussion here about the Texas rules. To the extent you participated you defended the changes.

      2. Brett, the theory behind the Texas suit, if it were sufficient to give Texas “standing” to challenge Pennsylvania’s election law changes, would give all of the other states exactly the same “standing” to sue Texas over its own election law changes. Remember? Republican election officials across the country made all kinds of decisions about ballot dropboxes, “signature matching,” in-person voting, etc., that tended to favor the “right type” of voters – thereby increasing their voting power and diluting that of “blue states,” in exactly the same way.

        Moreover, for the past couple of weeks Trump et al. have advocated that the state legislatures in PA/GA/MI/WI/AZ throw out the popular votes in those states and appoint their own slates of electors. Under Brett/Texas’s theory of standing, every blue state in the country would then have been able to sue each each of those states for those decisions.

  3. The Supreme Court is composed of lawyers. It lives in the Washington area. This is just the Deep State striking back at a populist President, cheated out of his election. The US may soon become a permanent one party state, as California is, through cheating.

    I recall the gracious reaction of the Democrats to the election of 2016. Republicans should learn from it, and imitate it.

    1. For there to be this much voting fraud it would have be be covered up by hundreds of local elections officials (both R and D), about a dozen Secretaries of State (both R and D), the FBI, the federal office of election security, the DoJ, and the entire Federal Judiciary. And all of them must cover it up while there are many very partisan people out actively looking for evidence of fraud. That is a hell of a Deep State and a lot of people trying to hurt a popular president.
      Or, alternately, the election was clean.

      1. Election fraud would have been far harder to cover up than FDR supposedly knowing that the Japanese carriers were coming in to attack Pearl Harbor, and that’s never been plausible. How did FDR learn of this secret attack? If it was some spy sneaking in over the fence, who told the spy? Why would FDR believe an unknown stranger with such unexpected and unlikely news? If FDR learned from the Navy, who? Couldn’t have been just one sailor, had to be an agency, multiple staffers, chain of command, all sorts of people and bureaucracy.

        Nope, neither happened.

        1. As in most things in life, sheer incompetence and wishful thinking account for many more problems than malicious behavior.

          Same reason why Britain was completely unprepared for WWII, despite the warnings of Winston Churchill.

      2. Or, alternately, the election was clean

        Time will tell, and may tell of complexities.

        1. The election may not have been stolen, but what it was NOT, was the one clean election in our nation’s history.

          1. By any definition other than your own weirdo interpretation of the law that no one of any consequence subscribes to, it was clean.

      3. Molly, there are two political parties: MAGA and Anti-MAGA.

        1. No. While one could argue that one party is driven to serve Trump, it is not right to say that the other side is driven to oppose Trump. They do have issues that they want that they had before Trump and will last after Trump.

          1. “They do have issues that they want that they had before Trump and will last after Trump.”

            Which is why some of us voted for Trump despite despising him as a person.

        2. Dr. Ed 2 : Molly, there are two political parties: MAGA and Anti-MAGA.

          Back to that? Let me remind you again : There is no “MAGA”.

          It was just standard Republicanism, plus a little meaningless fireworks with tariffs & a unbuilt wall, plus the vaudeville act of a huckster conman. Cartoon theatrics was its sole raison d’être.

          MAGA-ites didn’t scream&holler at the rallies in spite of Trump being a petty, narcissistic, dishonest deeply stupid man-child, but because of it. His very sleazy loathsomeness was a middle-finger to the world. That’s MAGA. That’s all it is. You can’t build a party around that.

          Though it’s funny watching Republicans line up to try….

      4. None of what you say is true. US elections used to be very secure because most of it was in-person voting, with votes tabulated at the precincts, which maintained the ballots and the poll books until after the election.

        Large scale mail-in voting introduces vulnerabilities that can be exploited by a relatively small number of people in cities that are notorious for corruption: in this case Philadelphia, Detroit, Milwaukee and Atlanta. The processing of absentee ballots take place at central locations where large batches are run. The ballots have an outer and an inner envelope used to preserve the secrecy of the vote, and different people in different locations process the respective portions. When the outer envelope with the identifying voter information is opened and the inner envelope with the ballot is removed the ballot is untethered from anything identifying its authenticity. Anyone who has access to these ballots can swap them with pre-prepared phony ballots in an equal number, thus preserving the reconciliation with the poll books. The machines then scan them in the usual way and there is no way that an audit will detect fraud.

        FWIW I don’t think this happened in this election but it is something that must be addressed and fixed, preferably with going back to mostly in-person voting.

        1. The other benefit of mail-in ballots (which my state has exclusively used for years without issue) is that idiots can conjure up whatever fantasy they want about how bad it is, completely untethered to reality or fact.

          1. The other benefit of mail-in ballots (which my state has exclusively used for years without issue) is that idiots can conjure up whatever fantasy they want about how bad it is, completely untethered to reality or fact.

            Ah, the quintessential “here’s a state that has done mail-in ballots for years, thus mail-in ballots are inherently secure” straw man. Let’s instead talk about states that have NOT exclusively used mail-in ballots for years, that hastily implemented mail-in-ballots this summer, and that went out of their way to (1) sweep basic safeguards against fraudulent use of mail-in ballots out of the way prior to the election, and (2) stymie any efforts to perform basic validation against fraudulent use of mail-in ballots while counting the results.

            I’m extremely comfortable that’s not how your state rolled it out. And if they did, then yes, they’ve left themselves open to people (rightly) questioning the results.

            1. So Life of Brian tells us mail-in voting isn’t inherently evil – but there’s a special 2020 Election exception available to explain Trump’s loss. It was (he tells us) all those new mail-in voting states that caused the problem.

              So, Brian : What problem? Trump and all his enablers/cultists have found no more voting fraud in the new mail-in states than the old. At some point the Cult will have to give up talking about theoretically possible voting fraud & actually produce some.

              Unless they already know they’re full of shit. Unless they know there’s no more voting fraud than Kris Korbach found with his failure of a commission. Unless they know the reason Trump underperformed against Republicans was people were tired of a petulant child as president.

              Which I’m guessing will be a problem for Life of Brian. That’s probably what he liked about Trump…..

          2. Loons like Jimmy Carter and Jim Baker disagree with you but what do they know? They studied vote fraud all over the world but genius Jason knows better.

            1. Yes, Jimmy Carter has studied vote fraud all over the world. He has a well deserved reputation as the go-to guy when you’re a despot, and you want your Stalinist show-election certified squeaky clean.

        2. ” something that must be addressed and fixed, preferably with going back to mostly in-person voting.”

          As someone who has voted by mail for the past 16 years, I agree with that.

          1. I think it’s a terrible idea.

            Of course, it does reduce voting in those nasty cities, because people have to stand in line a long time in bad weather, while the suburbanites and rural voters make a quick ten-minute visit to the polling place.

            Bear in mind that even if you have early voting, which is probably the next thing to be attacked, you’re going to have the heaviest traffic, by far, on the weekend. How many polling places, poll workers, voting machines, do you have to have to assure that everyone in a densely populated city can vote in a reasonable length of time?

            1. How many polling places, poll workers, voting machines, do you have to have to assure that everyone in a densely populated city can vote in a reasonable length of time?

              Fewer than needed to process millions of mail-in votes. Dems seem intent for some reason to get us to employ the most fragile system possible and then abandon every safeguard in order to avoid “suppression.”

              All over the world people manage to endure the terrible hardships of in-person voting. Maybe the spoiled little urbanites here could toughen up a bit.

      5. There is no conspiracy. There is culture and bias. Rent seeking drives interests, and cannot be overcome. They are puzzled when you say, government does nothing well, and should be shrunk. Their ideal is the surveillance state of the Chinese Communist Party, but not in your face like the Chinese, much more sophisticated, and always justified by welfare of the majority.

        A Peace Corps American taught English to Chinese college students. He started explaining Hamlet with the standard personal quandaries, and anxieties. They just laughed. They loved their teacher, but he was incorrect. Hamlet was obviously about the proletariat struggle against the aristocracy and bourgeoisie. Western interpretations were beyond their ability to understand. The Deep State has no more ability to understand populism than those well educated Chinese students to understand individual rather than class struggle.

    2. The dishonesty here is on the part of Trump and his enablers, who are trying to steal the election and/or gain political advantage with no thought to the effects on our democracy.

      The full just reward for Trump and his elected enablers may have to await the verdict of history.

      As for the lawyers who are acting on Trump’s behalf in this whole execrable affair: Are there no limits to the frivolity of legal actions which can be brought in an attempt to subvert, delay or delegitimize governmental processes? If the legal profession were enforcing its stated standards, would not some serious sanctions result from this?

  4. I find Alito/Thomas’s apparent view that they cannot deny leave to file a complaint when a decision is within their original and exclusive jurisdiction (must be both by the way) on the basis that the proposed Complaint plainly fails to state a claim upon which the plaintiff has standing to be utterly bizarre. A federal district court can sua sponte dismiss in such circumstances so why couldn’t the Supreme Court of the United States just deny leave to file on that basis. If it is the formality that they must allow filing but then can sua sponte dismiss, that is form over substance and makes no real sense.

    The Supreme Court has a long-established procedure whereby a potential plaintiff within its original jurisdiction must get leave to file (this makes particular sense in those cases where its original jurisdiction is not exclusive). Why can’t this procedure be invoked to weed out meritless cases within its original and exclusive jurisdiction in the same way it weeds out cases within its original (but non-exclusive, e.g., cases involving ambassadors, cases where the United States is a party or where a State is a party but not against another State) jurisdiction where there is no good reason for the case not be filed originally in a district court?

    Finally, and missed on almost all commentators, is that Justices Alito/Thomas would allow the complaint to be filed and they did NOT say that they would dismiss it immediately but just not grant relief (which is obviously ambiguous and can just refer to the request for a TRO, etc.). Allowing the filing of the Complaint is a BIG deal – it would subject the defendant-States to the compulsory process of the Supreme Court of the United States. They would have to answer or otherwise move, or else they’d be in default. The fact that Alito/Thomas were so ambiguous could be charitably explained as a function of short time but I don’t think that’s right.

    1. Are they leaving a window open for an impeachment of Bite Me & Her Arse?

      If the GOP wins the House in 2022, you gotta know it’s coming…

      1. What does the Supreme Court have to do with impeachment?

        Here I thought this was a legal blog, and yet I keep reading comments reflecting this level of legal understanding.

        1. Just remember that Dr Ed’s nickname here is “Shit-for-brains” and you’ll do fine. The jury is still out re if Ed is a Russian troll bot or a bored, bright. 5-grader. We do know that she/he is willing to lie in a post, that many such posts include an unverifiable personal anecdote that Ed happens to know–that happens to exactly support whatever bullshit point he is making that day.

          I read his posts for amusement value. I think most liberal and conservatives on this blog do the same. Certainly all of us lawyers do. I suggest you do the same. 🙂

        2. What does the Supreme Court have to do with impeachment?

          1: United States v. Nixon, 418 U.S. 683 (1974)

          2: I don’t know all the funky Senate rules, but could Alito & Thomas been avoiding something that would affect what the House Managers could or couldn’t argue in an impeachment trial?

          3: “Impeachment trial” — it *is* a legal proceeding, an obscure and quite political one, presided over by the SCOTUS CJ.

          1. US v. Nixon has nothing to do with impeachment. In fact, the word “impeach” comes up only twice in the entire opinion, both times in the context of “impeaching” witness testimony. The simple fact is, impeachment is a political act entirely within the purview of Congress, not a legal action subject to the overview of of review by the Supreme Court.

            1. Maybe he’s thinking of Nixon vs United States? Not sure how it has anything to do with the current discussion, but at least it’s about impeachment.

              1. Right and the holding of that case is that the Court has nothing to do with impeachment – i.e., no judicial review of impeachment because it is a political question.

      2. Are they leaving a window open for an impeachment of Bite Me & Her Arse?

        In the most technical possible sense, since there was no way this putative window could have been closed by the Supreme Court.

    2. I find Alito/Thomas’s apparent view that they cannot deny leave to file a complaint when a decision is within their original and exclusive jurisdiction (must be both by the way) on the basis that the proposed Complaint plainly fails to state a claim upon which the plaintiff has standing to be utterly bizarre.

      I don’t think that’s what they’re saying. What they’re saying is that the Court can’t dismiss an original jurisdiction case on the basis of “we can’t be bothered to deal with this”. But standing, failure to state a claim, etc. would still be on the table as always.

      1. I also think that’s the clear reading of Alito’s/Thomas’s statement. Doesn’t seem that ambiguous to me.

      2. I don’t think that’s what they’re saying. What they’re saying is that the Court can’t dismiss an original jurisdiction case on the basis of “we can’t be bothered to deal with this”. But standing, failure to state a claim, etc. would still be on the table as always.

        That is what they are saying – otherwise, they would not have had a separate statement. The idea that the Court cannot reject a complaint for filing (within the Court’s exclusive/original jurisdiction) on the grounds of “we can’t be bothered to deal with this” seems fine to me (albeit not one shared by the majority of the Court). But that’s not what the Court said here (contra the case where Oklahoma sued Colorado for a nuisance based on the marijuana trade). Rather, the Court here says we are not accepting your complaint because it does not state a claim you have standing to raise. That is a perfectly appropriate ground not to accept a complaint for filing under any legal regime.

        Requiring a party to get leave to file a Complaint in the Supreme Court – given how extraordinary it is – seems like a fine practice. There is no reason why the Court must allow Complaints to be filed as a matter of course a la the federal district courts (and then screen for jurisdiction and other defects after filing). Obviously, in the case of the Court’s original and non-exclusive jurisdiction, it is a must. But even in the Court’s exclusive jurisdiction, there is no reason why the Court should not be able to prescreen Complaints to make sure they have some minimal merit before requiring a defendant-State to be subject to the compulsory process of the US Supreme Court is just a smart practice. This seems completely different from the “we can’t be bothered to deal with it” ground that Thomas was objecting to in other cases.

        1. Again, they said they would have allowed for the filing of the Complaint which means that they rejected that the Court can deny leave to file in the first instance on the grounds of no standing.

          1. Help me out here. If Thomas and Alito are right, then what’s the point of asking for leave to file? Wouldn’t the answer always have to be “yes” if the Alito/Thomas standard were to be accepted by a majority of the court?

            1. Yes. Their position is that in cases where the Court has both original AND exclusive jurisdiction (the only such cases being State v. State), the Court has no discretion whatsoever to deny leave. To them, the point of asking for leave, I would guess, is to (a) screen to make sure the case actually is within the Court’s original exclusive jurisdiction; and (b) for cases within the Court’s original jurisdiction, but non-exclusive* jurisdiction, the Court can see if the case is important enough to take (the answer to that is just about always no – I think there has been one case in the last 50 or so years – Oregon v. Mitchell – where the Court has heard a case within its original but non-exclusive jurisdiction).

              *Per the Constitution, the Court has original jurisdiction over any cases where a State is a party at all and in cases “affecting Ambassadors, other public Ministers and Consuls.” Congress has given district courts original jurisdiction over these types of cases as well (except for State v. State) so the Court almost always denies leave to file in those cases because the case can be filed in district court.

            2. Well, trivially, it gives the Supreme court the opportunity to say, “Sorry, Clem, you are not to our knowledge a state. Nice try, though.”

              1. Yeah, crap on Jimmy Carter more. What an immoral tool he is!

        2. That is a perfectly appropriate ground not to accept a complaint for filing under any legal regime.

          If I file a case in U.S. District Court with obviously no standing — an example I gave in another thread here was if I sued WalMart under Title VII for discriminating against its black employees despite the fact that I was neither black nor a WalMart employee — the complaint is still filed. Even if the court sua sponte dismisses it, it still gets the docket number and everything. I know of nothing in the FRCP or in federal law that says that they can refuse to file it.

          (I guess I”m not entirely familiar with the IFP rules, particularly as they interact with the PLRA. But for cases where people actually pay the filing fee.)

    3. It doesn’t seem that bizarre to me—the current Supreme Court rules just aren’t set up to accommodate it, because they call for an initial round of briefing on whether the complaint should be filed instead of accepting the complaint and the responses. In this case, the primary arguments against taking the case were that the complaint was meritless (including because the court did not have jurisdiction), and I agree that the distinction between refusing the complaint because the court has no jurisdiction and accepting the complaint then immediately dismissing it for the same reason is an awfully fine one. Which is presumably (part of) why Alito’s comments were captioned a statement rather than a dissent.

      1. I agree that the distinction between refusing the complaint because the court has no jurisdiction and accepting the complaint then immediately dismissing it for the same reason is an awfully fine one.

        Right, it is a fine line but a very meaningful one. When the Court accepts original jurisdiction over a case against a State, the State must answer or move, otherwise, it is in default. A State need not even respond to a motion for leave to file. Before invoking the compulsory process of the Supreme Court, it seems totally fine for the Court to screen the case for minimal merit on issues like standing, etc. If California tried to sue Texas for being a hick state, I think the Court would be well within its power to say nope, not filing that crap in this Court because there is no plausible claim. That Thomas/Alito seem to reject that is rather bizarre. What in the Constitution or Acts of Congress says that the Court cannot pre-screen cases within its original and exclusive jurisdiction? Nothing. I get Thomas’s objection to rejecting the filing of a case between two States on the ground that the Court is too busy, but rejecting the filing because it is plainly meritless is just common sense and fully consistent with judicial practice.

        1. When the Court accepts original jurisdiction over a case against a State, the State must answer or move, otherwise, it is in default.

          Unless the Court dismisses sua sponte.

  5. And on it goes. Constitutional law professors will continue to quibble and pontificate for their own gratification about a ridiculous lawsuit filed be some ridiculous attorneys general. Even Trump and his most ardent supporters know they lost at the polls, have been laughed out of every court from which they sought relief, and that there’s no Plan B. What Alito and Thomas may have intended by their separate statement is of no importance (though undoubtedly law professors will continue to pretend otherwise). Meanwhile, Trump will continue to rile up his base, partly because he wants their money and partly because his ego won’t allow him to admit that he’s a loser. The adults will move on, though, content to live in reality, knowing that the system worked and our four-year nightmare is over.

  6. For all of you who still are trying to argue that the state votes were illegal and all you want is a ruling on the merits, here you go.

    https://beta.documentcloud.org/documents/20423518-trump_case_decision

    1. I’ve now read this. Yes, at least one court in 50 has finally reached the merits of one of these cases, after properly analyzing standing.

      The court’s ruling on the merits is an example of manipulating levels of abstraction. The court concedes that the state legislature is entitled to dictate the manner of selecting electors. At a very, very high level of abstraction, the “manner” chosen was a popular election.

      A popular election took place, so the manner the legislature chose was used. And never mind any details that were different from what the legislature chose. That’s it for the electors clause analysis.

      The details are all election “administration”, not “manner”. And since the elections officials were delegated the power to administer by the legislature, they had discretion to do it in a mannerway that is different from the one the legislature enacted.

      I’m not happy with the reasoning, obviously, and think Trump should appeal the ruling, but it was a ruling on the merits, even if the reasoning basically deprives the legislature of the power to write binding election laws if they delegate enforcement to anybody else.

      1. I’ve now read this. Yes, at least one court in 50 has finally reached the merits of one of these cases, after properly analyzing standing.

        Again: many of the state courts have done so, and have rejected these suits on the merits. The Wisconsin courts, for example, have already ruled that all of these “issues” are bullshit and that the things complained of all comply with Wisconsin law. Nothing was “different from the one the legislature enacted.”

  7. All this misses the basic point, that whatever the Democrats may or may not have done, legally or illegally, to change voting procedures, the Republicans could have done the same. All these complaints are like an 18-19 baseball game decided by one questionable call at the plate; the game was so close that whoever loses will complain they wuz robbed.

    No matter who won this election, or 2016, half the voters were pissed off.

    As a simple example in 2000 Gore’s people made the strategic decision to ask for a partial recount, and the Supreme Court said no, either a full recount or none; and because Gore had waited too long, intentionally to run out the clock or by prevaricating too much, there was no time for a full recount, and Gore lost. Elections have deadlines. You can’t keep postponing the results until every last participant is satisfied.

    Similarly, Trump told his voters to not vote by mail. That was a bad strategic decision which probably cost him the election. I bet the election difference would have been more than made up by Republicans who purposely did not vote by mail, per Trump, and later missed the election booths because of weather, COVID-19, sickness, or even death.

    1. Both sides didn’t do it, this time, but if this sort of stuff is going to go unpunished, why shouldn’t MAGA play by the same rules?

    2. “As a simple example in 2000 Gore’s people made the strategic decision to ask for a partial recount, and the Supreme Court said no, either a full recount or none;”

      Geeze, I think you really need to go back and review what happened, it’s all gotten mixed up in your head. The Supreme court said nothing of the sort. Gore asked for a partial recount in his strongest counties, at the last minute so Bush wouldn’t have time to respond in kind, and he got it. It just wasn’t enough to put him over the top, especially after Palm Beach decided to stop recounting once they couldn’t do so in private.

      He only asked for the full recount after the partial one didn’t do the job. Of course, he asked for it after his right to demand one had expired, and had to go to court to force one.

      And he could have gotten THAT one, too, if he hadn’t been so insistent on it being conducted without any uniform standard. The only reason that recount was halted was the equal protection violation, after all.

      1. I didn’t mix anything up. I just simplified the matter. It still came down to full recount or none.

        1. No, it didn’t. He actually GOT his partial recount. So, where is this full recount or none business coming from?

          1. From Bush v. Gore:

            The [Florida supreme] court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation.

            Florida SC ordered a statewide recount (but of undervotes, not all ballots).

            Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.

            SCOTUS stopped the recount and (5-4) prohibited any further recount because they decided no recount that met constitutional standards could be completed in the time left.

    3. 1. All sides must play by the rules and follow the law.

      2. There should be not thing as a partial recount in a state. Either you recount them all, or you recount none.

    4. “All this misses the basic point, that whatever the Democrats may or may not have done, legally or illegally, to change voting procedures, the Republicans could have done the same.”

      So, one party violating election laws is OK, because the other party could have done the same? That’s pretty crazy.

      1. Election rules that have been upheld in state court should not be retroactively overturned (voiding votes) after the election in federal court. Voters rely on the explanations of election agencies and the determinations of court to determine the manner in which they cast their vote; it’s unfair if they are essentially tricked into voting in a manner that is illegal.

    5. All wrong, Gore wanted a statewide recount but the only path to get there was to force W Bush to call for statewide recount which would then force Jeb’s/Harris’ hand. But because W Bush never lost the lead Jeb/Harris tactic was foot dragging to run out the clock.

      1. SC,
        If Gore wanted a statewide recount according to uniform procedures he kept might damned quiet about it. Plus he made a lot of noise about recounting only in heavily dem counties.

        1. You are conflating tactics with goals. So in the Dolphins/Chiefs game the coach decided to kick a FG on 2nd down with 30 seconds to go when they were down by 9. So he didn’t want to kick a FG and lose…but that was the best tactic to give the team a chance to win.

      2. Originally, Gore did NOT want a statewide recount. During the challenge period, Gore was as entitled to ask for a recount in ALL Florida counties, as he was to ask for one in just four. And he didn’t, and for good reason:

        The reason he didn’t, is because hand recounts tend to maintain the proportions of the votes, but increase the totals a bit for both candidates. By recounting only 4 large counties where he’d done particularly well, Gore hoped to scrape out enough extra votes to make up his state-wide loss, where recounting in all the counties would likely just maintain Bush’s narrow lead.

        That’s why he asked at the last minute, so Bush would not have time to ask for recounts in HIS strong counties.

        The later state-wide recount was only one last long shot, after his partial recount had fallen short of handing him the victory.

        1. That is wrong. Gore had limited time and resources and it took time and resources to go county by county and get recounts. Gore asked for recounts in pro-Democratic counties because he wanted to win…but he knew once he took the lead then a statewide recount would be forced by Jeb/Harris/W Bush. Jeb/Harris successfully dragged their feet and ran out the clock…but had Gore initially been winning by 500 votes then Jeb/Harris would have forced a statewide recount with guidelines that made it more likely for W Bush to get more votes counted.

          I also think had Bush lost Ohio in 2004 while winning the popular vote by 3 million votes that Bush would have tried to get the EC to vote for him. Remember, W Bush lied us into a war and in 2002 he was pressuring the CIA to torture detainees in order to elicit false confessions tying Saddam to 9/11.

  8. The objective of Paxton’s lawsuit was not to win on the merits. Had he “won” that would have no doubt been great, but in fact his objectives were clearly:

    #1: To please Trump enough to extract a blanket pardon on his way out the door. This blog posting has an example of how much Trump was pleased.

    #2: To please the Trump base (extreme in Texas) because at this point most conservatives seem to have concluded that if you want any political future you have to do that.

    #3: Keep the chaff flying every which direction to provide fodder for the right wing media to churn out more breathless articles to whip even more Republicans into a frenzy. Most already believe the election was stolen and Biden’s presidency will be “illegitimate.” You will find a number of examples of this production right here in this comments section. More of them will desperately send in more money to Trump’s super-PAC (see #1).

    On these counts Paxton’s lawsuit is a success. Taxpayers foot the bill for it so why not.

    1. I agree, and if it allows him to beat George P Bush in a primary for governor then the Trump presidency will be the most successful presidency in history by beating two Bushes and a Clinton!!

  9. The Chief may not have been willing to set a precedent about granting motions for leave.

    Maybe Blackman can explain the potential motivation for such a position.
    It just seems it would have been far cleaner to grant the motion, and then immediately dismiss it using the rationale used to deny the motion. What is the argument for not doing that.

    1. That it would encourage a million other state AGs filing frivolous lawsuits against other states to score political points back home.

      1. When there are only 49 other state AG’s, that seems unlikely.

        1. Ok, make that 50 attorneys generals, plus 50 solicitors general and you get 10,000 combinations if you allow for officials to sue themselves, which could very well happen by accident once this genie is out of the bottle.

      2. That it would encourage a million other state AGs filing frivolous lawsuits against other states to score political points back home.

        I’m not seeing any encouragement in having your motion granted (as a matter of protocol) then immediately stomped.

      3. I assume the suggestion is that instead the order would have read something like:

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

        I’m not sure I see much marginal difference that would make in terms of incentives for grandstanding AGs going forward.

      4. Like Massachusetts’ Maura Healey’s lawsuit against Exxon?

    2. Although not totally spelled out, the current Supreme Court rules appear to contemplate a further round of briefing in response to the complaint once it’s accepted. Assuming the Supreme Court has authority to reject a complaint, this potentially seems like a cleaner and more efficient way to dispose of the case. I also could imagine that at least some of the justices who believe that discretion over original jurisdiction cases is important feel as strongly about it as Alito and Thomas feel about their position and also want to make it clear that their dissents don’t mean anything has changed.

  10. Well, I’ve been assured that I no longer live in a democracy due to somebody filing a lawsuit (now dismissed) and some other people supporting said lawsuit. The traitorous traitors have transformed the United States into a fascist dictatorship … merely by filing (and suppporting) a now-dismissed lawsuit!

    And, I have to say, my first day living in a fascist dictatorship instead of a democracy sure feels weird. Can’t believe the fascist dictator party is allowing this type of discussion of their lawsuit! I’m sure that that Prof. Blackman will be seeing the brownshirts show up at his door to take him away and lock him up in a cage any minute now. Obviously, you CAN’T write about a lawsuit in a non-democracy!

    Indeed, I would warn all the commenters on this post that they likewise ought to be careful about being taken away, since we now no longer live in a democracy. Wait, who’s that at my door? Hello…. aaaah! Damn ReTrumplicans! Why did they go and support a failed lawsuit!

    1. Good point, AI S. A lot of people look awfully silly, now that it’s turned out that the President, 17 state attorneys general and a majority of Republican Members of Congress only _attempted_ to throw out the results of the presidential election because they didn’t like the outcome.

    2. What the Rs tried to do is very serious and very dangerous. They failed this time, but they may not next time. Lets say theoretically Texas went D by just a bit and flipping Texas could flip the election, it is not at all out of the realm of possibility that they could have pulled enough stunts to throw enough votes out to flip Texas, or if that failed, just get the Texas statehouse to assign the electors to the Rs. Elections need to be immune from partisan manipulation.

      1. “Elections need to be immune from partisan manipulation.”
        They never were and they never will be.

    3. You know who else attempted and failed at a coup once before succeeding?

  11. Given that Biden won by 7 million popular votes, all this grousing by the right is really a complaint that they weren’t again successful in depriving the majority of its choice for president. Suck it up guys. The minority can’t win all the time.

  12. Josh, you failed to criticize the Chief in your post. I think you lost your streak.

    And, personally, I loved Justice Alito citing to a Thomas dissent to support his own dissent followed by what could only be an intentionally obtuse comment on the merits.

    Justice Thomas is an annoying record stuck in the 1868 groove on the LP that is American history. Whereas, Justice Alito is a Tory.

  13. I practiced law for almost 50 years, so the concept of “standing” isn’t all that arcane to me (the details of whether standing exists in a particular case can of course be very arcane). But most American voters aren’t lawyers, so for them to hear that the Supreme Court has, because of lack of “standing”, refused to consider the merits of a claim that the Presidential election wasn’t conducted in a fair and legal manner, is at least perplexing and perhaps distressing. This is particularly so because virtually all of the other challenges to the conduct of the election, in various State and Federal courts, have been dismissed almost immediately, apparently without in-depth consideration of whether misconduct in fact occurred. If you read/hear/see the conventional news media, you are told this is because the courts found “no merit” in the claims, but a skeptic could reasonably ask, How can the courts know the claims have no merit without conducting a lengthy trial? If all the courts are saying is, This isn’t our issue to resolve, or the President’s lawyers didn’t draft their complaints properly, voters are left with doubt about the legitimacy of the outcome of the election. According to polls, a lot of Americans have such doubts.

    I don’t think there’s a solution to this problem. Biden is the apparent winner of the election, the Electoral College will so declare him, and Congress will accept the vote of the Electoral College (that’s when he will become “President Elect”). He will be inaugurated and become President in accordance with our Constitution. According to some polls, a substantial number of Americans will consider his election illegitimate (just as many Americans considered Trump’s 2016 election illegitimate). BOTH parties should do what they can to assure that future Presidential elections aren’t tainted by the suspicion of illegitimacy. “Should”, but I don’t think “will”.

    1. There is not a whole lot the Democrats can do to make Republicans stop making false claims in bad faith.

      1. Well, Glaucomatose, a good start in discouraging the Republicans from making false claims in bad faith would have been for the Democrats to not spend the last four years doing it themselves.

      2. Democrats set an example in 2016, to be imitated by Republicans in 2020.

        1. Uhh, yeah, so the Losing candidate in 2016 spent a month on twitter claiming members of their own party cheated them out of the election and refusing to concede

          Nope that didn’t happen

          trump is a liar a cheat and a spoiled child, and continues to act like one

          you worship him as a god

          what does that say about you

          1. Bullshit arp. There were four years of ILLEGITIMATE and political violence and impeachment and crap like that. RESISTANCE. I didn’t vote for Trump and don’t like him, but the bullshit from the left almost made me feel sorry for him.

            So no. You know how unhinged the right has looked since 11/3? Your side has looked like that four years. Deny it all you want, but those of us that aren’t on either team have watched it. Their hysteria doesn’t excuse yours.

            1. 4 years of violence?

              1. Riots in DC on Inauguration Day. There have been riots such in Portland pretty much ever since. “It’s ok to punch a Nazi”. The past summer. Fires and attacks at certain colleges when conservatives were going to speak.

                It’s been a constant threat since Trump was elected.

                1. Love it or hate it, the video is real and this is from 2017…
                  https://www.youtube.com/watch?v=HahVcBoyGzk

      3. Let’s see, how about committing to election rules only being changed by the legislature?

        Committing to letting elections observers actually observe?

        Committing to letting ballot security measures be enforced?

        1. “Let’s see, how about committing to election rules only being changed by the legislature?”
          Unless the person changing election rules is Greg Abbott, right? Because I don’t recall Paxton suing him.

          “Committing to letting elections observers actually observe?”
          There are a non-zero number of issues with this proposal.

          “Committing to letting ballot security measures be enforced?”
          Funny, seeing as many of the “ballot security measures” Paxton called for in his lawsuit _weren’t part of the election rules written by the legislature_.

    2. Good post, Eric. And yeah, it would help some if the conventional MSM hadn’t spent the Trump years setting fire to their reputation.

    3. “voters are left with doubt about the legitimacy of the outcome of the election”

      Just the worthless, gullible, inconsequential voters.

      1. Like you’ve been since 2016

    4. Thank you for the succinct description of the problem. It seems that objections to rule changes before the election were dismissed due to lack of injury and objections afterwards due to lack of redress. The questions of standing seem to be stood on their heads so that no one has the ability to object to laws being broken, even on the clear evidence of at least some local fraud.

      The appearance is that it’s a rigged game of “heads I win, tails you lose”. Even if you would have lost anyway, no one wants to feel that they lost a crooked game.

      1. t seems that objections to rule changes before the election were dismissed due to lack of injury

        No.

    5. That’s not true. In a great many of the lower court decisions, a judge specifically found that there was no credible evidence of fraud. In some, including the Pennsylvania case Giuliani argued in, the plaintiffs dropped their fraud claims because they couldn’t produce any evidence.

    6. 38 judges appointed by Republicans dealt blows to such suits, with some writing searing opinions.

      The latest example came Saturday, when federal District Judge Brett H. Ludwig, a Trump nominee who took the bench in September, dismissed a lawsuit filed by the president that sought to throw out the election results in Wisconsin, calling the request “extraordinary.”

      “A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred,” he wrote. “This Court has allowed plaintiff the chance to make his case and he has lost on the merits.”

      Trump asked for the rule of law to be followed, Ludwig noted, adding: “It has been.”

    7. “Biden is the apparent winner of the election, the Electoral College will so declare him, and Congress will accept the vote of the Electoral College (that’s when he will become “President Elect”).’

      By the Presidential Transition Act, Biden was President-elect at the latest when the GSA Administrator ascertained the first condition, that Biden was the apparent successful candidate.

  14. Maybe since Twitter is now so concerned about the factual accuracy of everything they will also start tagging tweets about global warming and America being racist as “this claim is disputed…”

    1. Only those claims aren’t disputed except by people totally out of touch with reality such as yourself.

      1. And only people who are totally out of touch with reality would say something like what you just typed.

  15. I’m loving this new standard of public decency we are expecting from our elected officials. No more AG grandstanding. That will be great. I’m sure this standard will be applied equally across the board so when a coalition of AG’s bring a BS global warming suit they will be roundly criticized by both the right and left.

    Here is to our newfound political standards in 2021!

  16. There’s a reason the SCOTUS has original jurisdiction on conflicts between the states – it is to promote settling interstate disputes in a peaceful manner. 18 states asked for their day in court and were summarily ignored. No court seems interested in hearing the evidence of election fraud. For 70m Americans who also see the mainstream media practicing mass censorship, this is all coming to a boiling point. The SCOTUS had a chance to play its role as a pressure release valve.

    And what’s happened since the ruling? The chair of the Texas GOP has called on those 18 states to form a Union of law abiding states and claim a jurisdiction separate from the current federal government. Does that sound crazy? 17 states joining the Texas lawsuit also sounded crazy. Texas has plenty of oil, lots of manufacturing, seaports, and much of the US refining capacity. Texas could see this as the opportunity to leave and, frankly, a lot of other states might be seeing that opportunity. It’s becoming clear that 70m Americans are growing to hate the other 70m Americans and vice versa – to the point of no longer wanting to share the same country.

    Penny-wise and pound-foolish is a gross understatement of our current situation.

    1. What evidence of fraud? Even Texas’s pleadings in the case acknowledged there was no such evidence – because, allegedly, the Democrats, and Republicans, in the four challenged states were so devious that such evidence was “undetectable.”

      Which is akin to suing JPMorgan for a billion dollars and telling the court that, yes, you really had all that money, but you don’t have any evidence of it because they were just so sneaky that they hid it all.

      1. Law abiding states is laughable. You realize that the guy who filed this suit is himself under indictment, right?

        And with you 70 million each that hate each other, you’ve covered about 40% of the country. What about the majority of us out here that wish y’all would grow the fuck up. Lose an election and y’all act like a bunch of 2 year olds, blue and red.

        1. Law abiding states is laughable. You realize that the guy who filed this suit is himself under indictment, right?

          Spot on, dude. Presumption of innocence is only for people I like!

          1. I live in Texas. I know people who know Paxton. Yes, he’s legally innocent as of today, but I’m not gonna ignore Shapiro people who know the guy tell me.

  17. You can debate the fraud that occurred during the election, how much there was, or the laws, but one thing that is beyond dispute is that no Democrat, Biden included, would ever stand a chance in an election if only the people the founders believed should be allowed to vote were allowed to vote.

    The Democrats cannot win without people the founders wisely knew should be prohibited from voting. Think about that. Democrats can only win with the votes of people the founders thought to either be too emotional or mentally inferior to themselves.

    1. “people the founders wisely knew should be prohibited from voting.”

      Right. If only we still held to the founders’ “wisdom” in not allowing women, or racial minorities, or people who don’t own property in their own name to vote, then maybe views as repellant as yours might actually have a fighting chance!

      1. Have you read the Bell Curve? Are you aware in the racial differences in intelligence?

        1. Dude:

          I have been a member of Mensa for over 40 years, and spent four years on its national governing board, and ten years as chair of the local group. I know a thing or two about highly intelligent people.

          There is no correlation between intelligence on the one hand, and common sense, good life skills, or being a decent human being on the other. So even if Allen Bloom’s premises in The Bell Curve weren’t total and complete bullshit (and I knew Allen Bloom, by the way; he, too, was a Mensan), his conclusions are almost completely beside the point. Intelligence tells you nothing about whether someone has ethics, is honest and trustworthy, or treats other people well. My totally non-scientific observation after 40 years is that Mensans have about the same proportion of saints and sinners as the general population.

          1. Nice, Kry.

            Brutal and concise.

            1. Even tough he got callouses from patting himself on the back (of his head)

              1. Yeah, the ‘I’m in Mensa’ bit is something I did just ignore (life skill in my line of work).
                But the “There is no correlation between intelligence on the one hand, and common sense, good life skills, or being a decent human being on the other” is really good. IQ != best policymaker.

                1. But that was for the specific purpose of showing I’ve spent enough time around high IQ people to know about high IQ people. Sorry if it came across otherwise.

                  1. I know, Kry. However, the Mensa brag did detract from your argument, not add to it. This is one of the few times I’ve ever read “I’m in Mensa” and not have it followed up with “Therefore I’m better than you”. So the anticipated nonsense actually interfered with your point, even though you didn’t say it yourself.

          2. So even if Allen Bloom’s premises in The Bell Curve weren’t total and complete bullshit (and I knew Allen Bloom, by the way; he, too, was a Mensan)

            What a pity that The Bell Curve was written by Richard Herrnstein and Charles Murray. Sorta puts a crimp in an otherwise pretty decent rant.

            OT: I vividly remember when Phil Donahue had Murray on, sans live studio audience — a first as I recall — because they were concerned for his safety.

            1. Ok so I mixed up which racist mensan wrote which racist book. Apologies; I’m getting old. The rest of the rant stands.

              1. Did you fake you Mensa test results? Probably easier to do that then rig an election.

                1. Actually, we once had a chair who was famous for being inattentive to detail, and there was a joke circulating that he helped someone get elected to the board before realizing the person wasn’t a member.

                  And there’s another joke that Donald Trump decided to take the Mensa entrance exam. When the proctor handed him the form and said “Sign here” he put “Capricorn”. After receiving his failing results, he promptly tweeted that he had the highest score in the entire history of the organization.

                  1. More likely is that Trump hired somebody to take the test for him and his substitute failed.

                2. Did you fake you Mensa test results

                  This is where you end up with ridiculous IQ credentialism. Fake IQs for all who disagree with IQ credentialism!

          3. We’re not talking about whether people are “decent human beings,” but whether they have the mental capacity and critical reasoning ability to self-govern, which is ultimately what voting is about.

            I posit that people with IQs of 85 do not. That is totally unrelated from whether they are “decent human beings” or not.

            1. I disagree. The Unabomber is quite likely Mensa eligible, and I would far rather trust a ballot to someone with an 85 IQ who is a decent human being.

              That aside, where to begin. First, are you proposing IQ tests for white people too — there are plenty of whites with IQs of 85 or below — or just minorities? If everyone has to take an IQ test, I would predict Trump would lose far more voters than Biden would.

              Second, what makes you think smart people are any less prone to confirmation bias and emotional decision making than not smart people? Mensa has both an atheist group and an evangelical Christian group, meaning the smartest people in the world disagree over whether there’s evidence for the existence of God. What makes you think that’s caused by anything other than confirmation bias and emotional decision making, and that that wouldn’t happen in the voting booth as well?

              Third, IQ only measures a specific type of intelligence. I do calculus problems for fun, but I’m not that great at reading other people. In fact, my non-Mensa-eligible spouse, who has superlative street smarts, has kept me out of trouble more times than I care to remember. Maybe someone with better street smarts than I have would do a better job of seeing through political bullshit. And, if you want to find people with really good street smarts, head to the nearest minority neighborhood, where having good street smarts is a matter of survival.

              IQ will not do the service that you’re trying to have it perform. Further, IQ is partly something you’re born with, but it also suffers if someone is deprived of adequate childhood nutrition or suffered in vitro exposure to alcohol or drugs, or had an unstable home environment as a child. There is research showing that those factors can impact an IQ by as much as ten points. So, if the numbers do in fact show that minorities don’t do as well on IQ tests as whites do, perhaps rather than assume it means minorities are stupid you should instead ask why that might be.

            2. You think IQ measures critical reasoning? Ability to self govern?

              No, you’re a racist who wants to argue some races are inferior and don’t deserve rights in our democracy. And you’re using IQ to make it seem rational.

              It’s not working very well.

              1. Yes, I absolutely do think that.

                https://www.youtube.com/watch?v=tpAOwJvTOio

                This is black America, folks.

            3. Indeed, you’ve talked about women and emotionalism making them ineligible to vote. That’s not correlated to IQ, which rather disproves your already racist thesis is cover for a much more racist one.

              1. I said “too emotional” OR “having a low IQ.” Not “AND”

                1. The you can’t map IQ onto critical reasoning or the ability to self govern like you just tried to do. Those are about mastering emotional urges.

                  Which you would realize if you took a moment to interact with what you’re arguing. But you never really do that.

                  1. You absolutely can. Women tend to be emotional creatures, even if they have high IQs. Having a high IQ is a necessary, but not sufficient condition, for being able to employ critical reasoning.

    2. Sieg heil, dude.

    3. Well someone takes the prize for the most racist and sexist comment.

      1. Sooo – from the comments of the regulars I take it that was not a sarcastic attack on originalism then, and that chap is serious? Oh sugar…

        1. 85 IQs don’t lie. The state of every country in Sub-Saharan Africa doesn’t lie.

  18. “As a matter of first principles, he’s not wrong about standing doctrine.”

    Of course he got it wrong. He has gotten in wrong on every issue in this farcical legal challenge. Here is his stupid, stupid tweet.

    “All they were interested in is “standing”, which makes it very difficult for the President to present a case on the merits. 75,000,000 votes!”

    Trump feels he should have standing on the basis of his 75 million votes. What a joke. and remember we are not talking about standing in front of a lower court, there Trump has had no issue of standing to get his case heard. But an individual does not have standing to go before the Supreme Court as a court of original jursidiction. Period. End of story. As for the state of Texas, in what universe does a state have standing to go to any court to charge another state’s duly designated Constitutional authority, particularly when that state’s court at the highest level has approved what the state has done.

    It is a shame that Mr. Blackmon tries so hard to placate Trump even when the circumstances are so blatantly against Trump.

    1. Sidney,
      JB may be from a 5th tier law school, but you deliberately misread what he wrote.

  19. Seriously y’all. This is why we need to destroy the existing parties. They’ve been taken over by the crazies of each side. So now we can’t even lose an election with out a four-year hissy fit including ridiculous claims of cheating.

    The Dems just did it for four years – awful, abhorrent, dishonest behavior. Now it’s the Republican’s turn.

    They’ve got to go.

    1. Right, I remember well the 50 plus cases Hillary filed to try and get the election overturned in her favor. And the way she would not concede. And the way she kept tweeting and arguing that she won despite the electoral vote. And her refusal to accept defeat where she spent the last four years having rallies and urging the populace to reject Trump’s lawful election.

      Yes, terrible, or would be if any of that happened.

      1. Shrug. The Dems did their own way of throwing fits. Rioting – not just lately. There were riots on Inauguration Day. Impeachment was brought up publicly before he was inaugurated. Pelosi tearing up the speech. And on and on.

        You’re not gonna see it because politics has destroyed your objectivity.

        1. random people protesting when a Fascist wannabe gets inaugurated is different from potus pretending he did not get voted out of office

    2. I agree with you.
      The issue is that destroying a party is nearly impossible because of they way our elections are set up and what they incentivize. Last time that happened was around the Civil War.

      I’m waiting for the generation on the left to age out.
      The GOP isn’t as old, but I hope that with a more effective and modern Democratic party speaking to peoples’ problems the GOP will be pressured to come back to earth to compete.

      1. I don’t know how it happens. The two parties are in charge of everything and set up stuff to keep everyone else out (I think you basically said that).

        But it’s got to happen somehow. The last four years has been awful and so far this upcoming four is starting off worse.

      2. S0,
        It is a nice wish, but… Right now there is so much poison in the water that if magically the Ds & Rs splintered into four, we still have far too much politically stupidity and rancor floating around.
        There have been period in which there was a considerable overlap in political thought in the two parties. During that period, deals got made and politicians actually felt motivated to work across the aisle. The pendulum is going to take a long time to swing back.
        Populism and race politics are a cancer in the American democracy. Just hope that it is not terminal

  20. And just to add insult to insult to the legally illiterate President, a federal judge in Wisconsin did grant Trumper standing, did hold a hearing on the merits of his case and did rule against him, with prejudice. End of story!!

    Oh, wait a minute, this judge was an ultra liberal partisan Democrat, no that’s not right, this judge was appointed by Trump.

    Trump delusional supporters, dontcha just hate it when logic and reason prevail over hysteria and fantasy.

  21. – From the fact that Potus has been using the language of the Serenity Prayer in his tweeting of the last few days, and was “shocked, shocked” to discover that there were demonstrations scheduled for today in DC, it seems he’s looking for a way to wind this down while saving some face.

    – A conflict between states should never be resolved by a 12b6 in a a one-sentence order (clearly assigned by the CJ to himself) on a Friday night.

    – There’s no way of knowing what the vote on the order was, or how the recent appointees voted.

    – Denying a state the right to file based on Standing fundamentally misuses standing doctrine. Private parties have to demonstrate certain things, else I could file a claim based on the Hindenburg explosion tomorrow. No such need to screen arises with these 50 or so parties specifically enumerated in the constitution, so if there’s no injury, causation, or redress, that’s a merits question, not an unenumerated and jurisdicitonal definition of the words “case or controversy.”

    — Yes, I understand why everyone wanted this outcome, but making it so did some real damage to the law itself. When the legal academy and the commentariat decide that they want something, the results are usually dispiriting — Americans really need to study legal history in law school. This finely reticulated conceptual net that you’re using as a social-betterment trampoline is a bit more powerful, fragile, and compelling than you give it credit for.

    Mr. D.

    1. Just to emphasize — my point on the misuse of Standing is that it’s being used against a sovereignty in a liminal proceeding within what is (at least in part) one of its own courts. The problem is that it’s being used as a threshold and gatekeeping procedural hurdle as opposed to an element of their prima facie case necessary for the grant of relief.

      Mr. D.

      1. Mr. D, where is the sovereign in that sovereignty? The theory of the case can hardly be competing sovereigns. To warrant being heard, the case has to infer one extensive sovereignty, with a need for uniformity across it, to assure . . . something. In short, the only qualified sovereign in sight is the sovereign People of the United States. And the sovereign People of the United States is not a power the government of Texas (not even the state’s sovereign, by the way) has leave to sue, or to constrain at all.

    2. The state of Texas used as a legal argument that the States of PA, GA, etc, are poopyheads

      If the Supreme court had to accept cases where one state claims another state is a poopyhead, then they would do nothing but that, and as the trumpistas have proven, they would file endless cases that the court is required to hear only to gum up the works

      trump lost

      unless he calls on the proud boys on Jan 20 to keep him in the white house, it is over

    3. Denying a state the right to file based on Standing fundamentally misuses standing doctrine. Private parties have to demonstrate certain things, else I could file a claim based on the Hindenburg explosion tomorrow. No such need to screen arises with these 50 or so parties specifically enumerated in the constitution, so if there’s no injury, causation, or redress, that’s a merits question, not an unenumerated and jurisdicitonal definition of the words “case or controversy.”

      Well, it’s possible that 9 justices on the Supreme Court as well as hundreds of law professors misunderstand standing doctrine, or maybe you do.

      I don’t know why you think standing applies only to the identity of the party but not to the nature of the claim. If you sue because of the Hindenburg explosion, there’s a lack of standing. If Texas sues because of the Hindenburg explosion, the same lack of standing exists.

  22. Professor Blackman says

    “The shorter order tossed the case out on jurisdictional grounds, and says nothing anout the merits.”

    1. This isn’t true of Justices Alito and Thomas. Since they said the Supreme Court had jurosdiction, their decision not to grant other relief had to have been a decision on the merits.

    2. Since Justices Thomas and Alito were probably the ones most likely to grant relief if anybody was going to do it, this probably says something, albeit not a binding opinion of the court, about the court’s view of the merits as a whole.

    1. ” their decision not to grant other relief had to have been a decision on the merits.”

      More of a decision on the proposed relief.

  23. Also, I think that Judge Ludwig’s opinion in Trump v. Wisconsin Elections Commission, a rare decision on the merits (Ludwig got past standing, immunity, abstention, etc.), found that The “manner” in which electors are appointed does not cover or federalize every dispute over every detail of election admisinstration. The fact that Trump disagrees with several of the Commission’s interpretations of details of Wisconsin election law, even assuming Trump is right on these details as a matter of state law, does not mean that the appointment failed to occur substantially in the “manner” prescribed by the legislature.

    I think this is exactly right.

    1. He decided that “manner” covered nothing beyond the fact that the legislature had specified that there be an election. There was an election, “manner” satisfied.

      I think that’s an awfully stripped down understanding of “manner”, just one step of abstraction short of “That they’d be selected somehow”. It’s sure not how the Supreme court treated “manner” in Florida.

      1. He also said that in the alternative, even if “manner” covers more, it doesn’t federalize every detail of state election law. The Wosconsin legislature created an agency, the Wisconsin State Election Commission, to issue guidance about how to interpret the statutes. The Commussion did that. In doing so, it acted within the “manner” the legislature prescribed, even if courts might disagree with some of its interpretations.

        He said it requires a substantial departure, not just a disagreement about a detail or two, to result in a different “manner” from the one the legislature prescribed. And the disputed details don’t even come close to a substantial departure.

        I think that’s exactly right. The clause is simply not a warrant for federal courts to micromanage how state officials interpret state election law. I think Trump’s claim it is is bogus.

        1. And just to reiterate: Wisconsin courts already said that all of these things were kosher under Wisconsin law.

  24. If you look closely at the Constitutional provision, the judicial power extends not to “cases and controversies” but to “cafes and controversies”. I’m not buying the supposed originalist view that in those days they made s’s look like f’s. I think it really was an f.

    So all Trump has to do is get into a Starbucks and sue from there, and he’ll have standing.

      1. Yes, good point. Make sure all the chairs have been taken away first.

  25. On reflection, it might be prudent for the Supreme Court to take one of the lower court cases which found standing and reached the merits on the grounds that cases filed between presidential election dates and the date the electoral college meets are examples of a subject that is capable of repetition yet evades review.

    And if they do, I think that Judge Ludwig’s opinion in Trump v. Wisconsin Elections Commission is correct and should be substantially adapted regarding the meaning of the Electors Clause.

    I also think the court should clarify its holding in Bush v. Gore. The Equal Protection Clause simply doesn’t require that every subdivision of a state use exactly the same election procedures in every detail.

    The extent of participation in Texas v. Pennsylvania (most states and a good many members of Congress weighed in), together with the likelihood of further chaos in elections and a bigger avalanch of lawsuits in four years, warrants prudential consideration here. If the Court does not issue a clear opinion on these issues, there is a risk they will fester and further undermine confidence in a Republican form of government and the ability of states and local governments to carry out elections.

    1. Nothing the Court could have done, short of awarding the election to Trump, would change any minds in the GOP that the election was “stolen”.

      1. Yes, but that claim was by and large completely detached from the court cases. The court cases generally speaking only alleged that election officials didn’t conduct the election in the manner specified by the state legislature due to things like extending deadlines for mail to arrive, ballot drop pboxes, help with filling out forms, relaxing certain requirements, etc. The court cases venerally alleged that these discrepancies violated the electors Clause consigning the manner of appointing electors exclusively to state legislatures, and/or differences in the way different cities and counties interpreted things violated the Equal Protection Clause. By and large, few of the court cases even alleged that there was any massive fraud going on. And the ones that did provided no credible proof.

        Nonetheless, the reliance on the two constitutional issues by a very large number officials in all those amicus briefs in the Texas case suggests that it might be prudent to clarify them. Even if the base neither knows nor cares about them.

    2. Trump has already appealed Judge Ludwig’s decision in Trump v. WEC to the 7th Circuit, so if they and the S.Ct. both act *real* fast they could conceivably render a decision in before January 6th.

  26. The Court could have structured the opinion to avoid any dissent.

    It did. Alito and Thomas were very careful not to label their votes as “dissents.” They made a “statement.”

  27. This.

    Plus, when you think about it, their “statement” was not cryptic at all.

    It made 3 points.

    1) The SCT does not have discretion to grant leave in this sort of case. It is not news that Alito and Thomas feel this way.

    2) In any event they would not grant any other relief. In other words: no PI, TRO, Stay or Administrative Stay (the four emergency reliefs requested by TX). Implicit in this is that they did not feel TX was likely to succeed on the merits.

    3) No opinion on any other matters. This is appropriate since anything else is moot.

    2) They would deny

    1. Not sure how the 2nd #2 got in there. Also this was supposed to be a reply to DMN.

      Stupid editing function.

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