The Volokh Conspiracy

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SCOTUS Shadow Docket De Facto Denies Trump's Latest Challenge to Pennsylvania Vote Count

The Response is due January 22. The inauguration us January 20.


On December 21, more than a month after the election, Donald J. Trump for President filed a petition for a writ of certiorari from the Supreme Court of Pennsylvania's decision. Law Professor John Eastman, who represents Trump, also filed a motion to expedite consideration of the petition for a writ of certiorari. Eastman asked for a super-fast briefing schedule:

Accordingly, Petitioner submits that Respondents should be directed to file their response(s) to the petition by 12:00 noon on December 23, 2020; and Petitioner submit its Reply Brief in support of certiorari by 12:00 noon on December 24, 2020. If certiorari is granted, if the Court deems additional briefing will be helpful, Petitioner submits that the Court should order expedited contemporaneous opening merits briefs for Petitioner and Respondents, together with any amicus curiae briefs. and contemporaneous Reply briefs for Petitioner and Respondents within 24 hours thereafter. If oral argument is deemed helpful, Petitioner submits that it should be ordered expedited, as well.

This schedule, in theory, would allow a resolution prior to January 20. And it could even permit a resolution prior to January 6 when Congress formally votes on the electoral votes.

The Court has not formally acted on Eastman's motion to expedite. But the Court, through the shadow docket, has de facto denied the motion, and indeed the entire challenge. A notation on the docket indicates that Pennsylvania's response is due on January 22. Two days after the inauguration. And sixteen days after Congress assembles. Game over.

It is unclear if Circuit Justice Alito was responsible for this de facto denial, or if the ruling came from the Clerk. My guess is the former. I doubt the Clerk would act alone on such a significant issue without consultation from the Circuit Justice.

Earlier this month, Circuit Justice Alito de facto denied another emergency appeal from Pennsylvania. He set the reply date after the safe harbor date. But then Alito walked it back.

The shadow docket abides.