And now we wait on tenterhooks to learn how the Supreme Court will rule on the suit brought by the State of Texas and 17 other states asking to throw out the election results from four other states (Georgia, Michigan, Pennsylvania, Wisconsin) on the grounds that they changed their election laws illegally. In general reaction to the suit has been along party lines.
I wanted to get my speculation about how the SCOTUS will rule on the books. I think the suit will be rejected on standings grounds.
Updated
The Supreme Court has unanimously rejected the State of Texas’s injunction request. Seven of the justices rejected the motion to file, as I suggested above, on standings grounds. The two most conservatives justices, Thomas and Alito, would have granted motion to leave but no other relief. From Jonathan Adler at The Volokh Conspiracy:
This evening, a unanimous Supreme Court refused to grant Texas Attorney General Ken Paxton an injunction or other relief that would bar the selection of presidential electors in Georgia, Michigan, Pennsylvania and Wisconsin. As detailed in the just-released order, seven justices would deny the Texas AG’s Motion for Leave to file a complaint, citing a lack of Article III standing. Justices Alito and Thomas, citing their long-standing belief that the Court lacks the discretion to deny the motion, would have granted the motion, but would have provided Texas with no other relief. In other words, not a single justice believed Texas deserved the extraordinary relief it sought.
Joe Biden will be elected president by the Electoral College when it meets.
Rejection on standings ground seems the most straightforward of the myriad ways this stupid case could (and will) get shot down.
My guess is that Roberts doesn’t want to touch the case with a 10 foot pole and will look for a way to reject it. IMO standings is the shortest distance between two points.
I don’t think it will just be Roberts. The merits of this case are so thin that I think a unanimous decision is likely.
Or they will moot the case because the electoral college meets on Monday.
After the electors vote its not in the judiciary’s powers to craft a remedy; so it is not a “case or controversy”. Actually one could argue the judiciary cannot craft a remedy after the “safe harbor” deadline, which has passed.
As a reminder, Congress (and not the Supreme Court) is the final arbiter of disputed Presidential elections, with the precedent of 1876 and the Electoral Count Act.
The Court may not give its reason for denying the motion. It didn’t when it rejected Arizona’s lawsuit against California’s laws on taxation of out-of-state businesses. It didn’t when it rejected Nebraska’s lawsuit against Colorado’s marijuana laws.
The policy reason is that issues with a state’s electoral system are best brought by private litigants in the states (in either state or federal courts). Maybe that could be expressed as lack of standing, but I think its more based upon the notion that original jurisdiction in the Supreme Court is rare and involve unusual disputes that can’t be resolved fairly in any other way.
It should bee unanimously rejected. I am predicting that at least one judge will support it. Maybe to make his wife happy. Maybe because they want to secure better speaking fees when they retire. Maybe because supporting Trumo is more important than the law.
Steve
The court gave a reason (standing), so its arguably been prodded by Thomas/Alito to not simply say “no.” But the Thomas/Alito felt obligated to accept this case, but would have denied the temporary injunction to stop the electoral count of the four states. I think this necessarily means that Thomas/Alito did not believe the Texas case presented a persuasive case on the merits.
Agreed. And they were maintaining consistency with their expressed views on the responsibilities of the court.