The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Making Sense of Texas v. Pennsylvania

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


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.