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The Supreme Court Was Right: Texas Didn’t Have Standing
The Federalist ^ | December 15, 2020 | Thomas Perry

Posted on 12/15/2020 10:16:00 AM PST by Kaslin

Those disappointed in the outcome of this election and of the Texas suit should not lose sight of the constitutional values that will last far beyond any one lawsuit and any one election.


On Friday, the Supreme Court denied Texas’s motion for leave to file a bill of complaint challenging the presidential election results in four states. The court’s order explained that leave to file was denied “for lack of standing under Article III of the Constitution” because Texas had not “demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

This was the right result for the right reason, and originalists should support it. Standing doctrine is not just a technicality or an excuse to punt difficult cases—it’s at the core of the judiciary’s defined and limited role.

Constitutional Limits on Courts Are Important

Article III of the Constitution limits the “judicial Power” to only “Cases” and “Controversies.” Very early in the nation’s history, the Supreme Court affirmed that the original understanding of these terms was limited to disputes between parties, not disputes about the law.

In 1793, the Washington administration confronted several legal questions related to the enforcement of foreign treaties. Secretary of State Thomas Jefferson wrote a letter to the justices of the Supreme Court asking for their opinion on those questions.

The justices wrote back to President Washington declining to answer any of the questions, explaining that both the “Lines of Separation drawn by the Constitution between the three Departments of Government” and the Supreme Court as “a court in the last Resort” were “Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to.”

The key word in that explanation was “extrajudicially.” Because the questions did not arise from a concrete dispute between two particular parties for the court to settle, providing an advisory opinion would have impermissibly crossed the boundary limiting the judicial branch to only cases and controversies. As the Supreme Court put it in the landmark case Marbury v. Madison (1803): “The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.”

Letting Anybody Bring Suit Would Not Go Well

The response may well come: “But Texas was not asking for an advisory opinion; this case was a dispute between two parties. After all, it’s right in the name of the case: Texas v. Pennsylvania.” There were indeed parties on both sides of the “v.” And there’s no doubt that Texas was pressing its views vigorously, to provide the court arguments on both sides of the legal dispute.

But the Supreme Court has rightly held many times that the “case or controversy” requirement demands more than just a party who believes the law has been violated and is willing to press that argument in court. As the Supreme Court put it in Hollingsworth v. Perry (2013), “it is not enough that the party invoking the power of the court have a keen interest in the issue.”

Why has the court imposed this limitation? Because if a keen interest were all that is necessary, the courts would soon turn into courts of de facto advisory opinions. As then-D.C. Circuit Judge Antonin Scalia explained in a 1983 essay, expanding standing doctrine to allow anyone to sue if he believes the law is being violated would give courts the “ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome.”

We would not be far off, at that point, from the advisory opinions that the Supreme Court disclaimed in 1793. Anyone would be able to put an abstract legal question before the courts, even if he had no special and particular interest in the outcome.

Limiting the judicial branch to cases between parties would at that point be little more than a legal fiction. In practice, the courts would have unlimited authority to pass on every legal question just as if they had the power to issue extrajudicial opinions.

Texas’s Theory of Harm Was Pretty Hypothetical

Still, Texas didn’t necessarily dispute any part of this history and theory. Texas argued it had an interest in resolving the underlying election-law questions that was concrete and particularized and did go beyond a general interest in the law being followed correctly.

Noting that each state is guaranteed the right to equal suffrage in the Senate, Texas argued that “the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate. Through that interest, States suffer an Article III injury when another State violates federal law to affect the outcome of a presidential election.” As Texas’s theory goes, the wrongful election of a vice president means Texas’s senators might in the future find themselves on the losing side of a 51-50 Senate vote when they should have been on the winning side.

Multiple factors all point to this argument as a clear loser under the Supreme Court’s longstanding application of standing doctrine: the number of steps required to reach a point at which Texas is harmed, the uncertainty of that harm, the large number of viable plaintiffs this theory would create, and the large number of election-related claims this theory would give states standing to bring.

First, the number of steps involved and uncertainty of the hypothetical harm: As Justice Scalia wrote for the Supreme Court in Lujan v. Defender of Wildlife (1992), “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”

If a plaintiff’s theory of individualized harm is based on either future events or a chain reaction, the plaintiff must still show “actual or imminent injury.” Once again, without this requirement the number of potential plaintiffs who can show hypothetical or potential injury would be vastly expanded, and the limitations on judicial review would be largely reduced to a fig leaf.

That’s why the Supreme Court held in Lujan that it was not enough to establish standing to challenge federal wildlife policy to say that one might visit the threatened habitats at issue; such a low bar could no doubt be satisfied by countless potential plaintiffs. Similarly, in Linda R.S. v. Richard D. (1973) the court held that a mother did not have standing to challenge the non-prosecution of a father for delinquency in his child support payments, because she could argue only that such prosecution might have incentivized the father to make his payments to her.

Anticipating a Possible Harm Isn’t Good Enough

Texas’s alleged injury was of a similarly hypothetical nature, and its rejection was well in line with the Supreme Court’s pre-existing approach to standing. Texas could argue only that vice president-elect Kamala Harris might break a 50-50 tie in the Senate in the next four years, and that Texas’s senators might be on the losing side of that vote. That possibility does not have the “imminence” required to ensure that judicial review is limited only to those with a particularized injury.

It’s a far cry from perhaps the closest analogous case, Coleman v. Miller (1939), which found that members of a state legislative body had standing to challenge the procedures by which a particular vote was taken. As the Supreme Court later explained, Coleman stands “at most . . . for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

Without a specific tie vote in the Senate to challenge, Texas’s case falls far short of that level of alleged specific injury.

You Don’t Want This Precedent, Trust Me

Similarly, the scope of Texas’s theory is another indicator that it is the type of standing argument the Supreme Court has repeatedly rejected. While the Supreme Court has recognized that in some instances “concrete injury has been suffered by many persons, as in mass fraud or mass tort situations,” generally the more potential plaintiffs a theory would create, the less plausible it is that the harm is particularized.

Texas’s theory would create standing for every state to challenge not just the votes for presidential electors in every other state, but also the elections for senator in every other state (since those also could result in changing the outcome of Senate votes decided by a one-vote margin).

Also, as just noted, it would give states standing to challenge such elections before it became clear whether any of the challenged elections would affect the outcome of any future vote in the Senate. While not quite as expansive as the rejected doctrine of standing for every citizen to challenge unconstitutional acts, a new doctrine of “all-50-states standing” for every presidential and Senate election dispute would mean few practical limits on the number of election-law disputes that could be brought before the courts.

It’s doubtful whether conservatives would appreciate such a doctrine quite so much if, for example, California brings a future challenge to Florida’s felon disenfranchisement rules or New York brings a challenge to Texas’s absentee ballot rules.

This Is a Case for Trump, Not Texas

Texas suggested such an outcome would not be out of line with the Supreme Court’s standing doctrine because in Massachusetts v. EPA (2007), the court held that states have “special solicitude” on standing analysis. That case held that the state of Massachusetts had standing to challenge federal policies related to global warming on the theory that it faced imminent injury in the erosion of its coasts.

But it’s ironic that Texas and conservative supporters of the lawsuit have relied on this 5-4 case, given that Justice Scalia and three current Supreme Court members (Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito) vigorously dissented from the theory of “special solicitude” for state standing. If just two of the three justices appointed by President Trump are inclined to favor that dissenting opinion, it’s likely that the theory of special solicitude could be overruled in a future case. It’s certainly highly unlikely that the theory will ever be extended into another novel realm of state-led litigation.

It’s thus unremarkable and entirely in line with both Supreme Court practice and the original meaning of Article III for the Supreme Court to have held that Texas did not have standing to challenge a presidential election in four other states. Such a holding did not mean that the election-law issues that Texas raised were entirely barred from the courthouse doors. The quintessential example of a party that does have standing in such disputes is the losing candidate, and President Trump took advantage of his own undisputed standing to bring such challenges in all four states at issue.

Alito and Thomas Didn’t Dissent, Either

This leaves one question that conservatives have raised in the wake of the Supreme Court’s terse order. Alito, joined by Thomas, noted that in his view the Supreme Court did not “have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.” Alito stated that he “would therefore grant the motion to file the bill of complaint but would not grant other relief,” and he made clear to “express no view on any other issue.”

Does this suggest any disagreement from Justices Thomas or Alito with the court’s resolution of the case on standing grounds? No. As both Thomas and Alito have noted in prior cases, federal law states that the Supreme Court “shall have original and exclusive jurisdiction of all controversies between two or more States” 28 U.S.C. §1251(a).

As a textual matter, the use of “shall have” suggests mandatory, rather than discretionary, jurisdiction. And this textual interpretation is bolstered by the structure of federal law, which bars lawsuits between two states from being filed anywhere but the Supreme Court. For those two reasons, Justices Thomas and Alito plausibly believe that denying leave to file should not be an option in a suit between two states.

If They Took the Case, Texas Still Didn’t Have Standing

But the Supreme Court’s order, although not endorsing the view of Justices Thomas and Alito, does go further toward their approach than it has in the past. In both of the prior cases in which Thomas and Alito have dissented from denial of leave to file, the court’s denial consisted of a single sentence: “The motion for leave to file a bill of complaint is denied.”

In other words, a majority of the court believes no legal explanation is necessary to deny leave to file. Here, by contrast, the court included a legal reason for denying leave to file: Texas would have lost on standing grounds even if the filing had been accepted.

It may not be procedurally what Justices Thomas and Alito believe is legally necessary, but the outcome is, in practical effect, no different from what would have happened if the court had accepted the filing and then dismissed the case on standing grounds. Also, nothing in the statement of Justices Alito and Thomas suggests that, had that procedure been followed, they would have disagreed with the eventual outcome.

Ultimately, those disappointed in the outcome of this election and in the outcome of the Texas suit specifically should not lose sight of the structural constitutional values that will last far beyond any one lawsuit and any one election. Federal courts’ limitation to cases and controversies is an important safeguard limiting the judiciary from becoming an even more powerful and uncabined branch than it already is. That’s a limitation that, in the long run, conservatives, libertarians, and originalists should be grateful for.


TOPICS: Culture/Society; Editorial; Government; Politics/Elections
KEYWORDS: 2020; constitution; constitutionallaw; electionlaw; electionlaws; fraud; nevertrumper; rino; scotus; standing; texas; vote
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1 posted on 12/15/2020 10:16:00 AM PST by Kaslin
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To: Kaslin

“...should not lose sight of the structural constitutional values that will last far beyond any one lawsuit and any one election.” Mental and moral midget trying to talk about future elections when this is in essence the last election.


2 posted on 12/15/2020 10:19:24 AM PST by KierkegaardMAN (This is the sort of stuff up with which I shall not put!)
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To: Kaslin

Baloney of course Texas had standing. Two and two is and always will be four ...


3 posted on 12/15/2020 10:19:38 AM PST by SecondAmendment (This just proves my latest theory ... LEFTISTS RUIN EVERYTHING)
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To: Kaslin
The Texas case was the wrong case for the SCOTUS to accept as a basis to overturn the election.

That was the whole problem with accepting the Texas law suit - the law was on the side of President Trump but it was a horrible reason to overturn a Presidential election because it would have been perceived as overturning the election based on a chicken s**t technicality

4 posted on 12/15/2020 10:20:27 AM PST by rdcbn1
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To: Kaslin

So, if a state doesn’t have standing against another state when that state violates the Constitution in such a way as to seriously undermine the political process of the several states, who the heck DOES have standing?!

So, if Florida takes too much water from a shared waterway with Georgia, Georgia has standing to sue Florida, but if Michigan takes to many votes from a shared election with Texas, no standing?!


5 posted on 12/15/2020 10:21:20 AM PST by Dr. Sivana (There is no salvation in politics)
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To: Kaslin

The Supreme Court apologists are having a field day.


6 posted on 12/15/2020 10:23:03 AM PST by windsorknot
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To: rdcbn1
horrible reason to overturn a Presidential election

This is NOT "overturning an election", it is trying to come up with a correct Constitutional result when a bunch of dirty deep staters pee and defecate in the voters' swimming pool.
7 posted on 12/15/2020 10:23:09 AM PST by Dr. Sivana (There is no salvation in politics)
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To: Kaslin

Defending the indefensible.

Illegal votes in one state, disenfranchises the legal votes
not only in that state, but in the other 49 states to boot.

In the case of what is going on right now, it reversed the
natural outcome of the election.

Other states whose votes were legal, were disenfranchised by
the illegal votes.

The people who voted for Trump, were cheated. Their votes
meant nothing.

The SCOTUS is fill of Obama on this one.


8 posted on 12/15/2020 10:23:35 AM PST by DoughtyOne (I'm calling for terrorist and criminal reform. Defund them now.)
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To: Kaslin

Here come the scribblers again.


9 posted on 12/15/2020 10:24:28 AM PST by Seruzawa (TANSTAAFL!)
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To: Kaslin
Article III of the Constitution limits the “judicial Power” to only “Cases” and “Controversies.” Very early in the nation’s history, the Supreme Court affirmed that the original understanding of these terms was limited to disputes between parties, not disputes about the law.

However, there has never, to my knowledge, been a dispute between parties (TX and several other states) that was a question of whether the law as applied (as opposed to as written) that occurred in the original jurisdiction of the supreme court.

Yes, the remedy sought was unique. However, the facts of the question itself are unique and bordering the explored universe of jurisprudence. The fraud was so blatant and pervasive in the disputed states that the harm was both concrete and judiciable, IMHO.

10 posted on 12/15/2020 10:24:40 AM PST by MortMan (Shouldn't "palindrome" read the same forward and backward?)
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To: Kaslin

So much for We the People.


11 posted on 12/15/2020 10:24:46 AM PST by sasquatch
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To: Kaslin

Rush just brought out a very good point. He said that the Supreme Court refused to hear the case because they wanted Trump out of office. It’s easy to take legalese, which is confusing to laymen at the best of times, and make up some muckety-muck that sounds good as a reason not to hear the case.


12 posted on 12/15/2020 10:24:53 AM PST by EinNYC
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To: Kaslin
Lots of niceties about precedent, prior cases, hypothetical harm. yadda yadda yadda. SCOTUS is a court that legislated that the commerce clause gave the government the power to regulate everything in the universe. They never feel their hands are tied. If they wanted to review it, they would have. They didn't and the rest is justification after the fact.

The fact remains that several states violated their own laws AND the constitution. Nowhere does this sage analysis address that as a concern or consideration. However if states can do that and other states have no standing to object then the court is telling states their only options is accept subservient status, retaliate in some way, or walk away. No good choices left.

13 posted on 12/15/2020 10:24:57 AM PST by pepsi_junkie (Often wrong, but never in doubt!)
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To: rdcbn1

It wouldn’t “overturn” an Election, it would validate the Legal Votes and invalidate the Illegal Votes in the Election.


14 posted on 12/15/2020 10:27:15 AM PST by Kickass Conservative (THEY LIVE, and we're the only ones wearing the Sunglasses.)
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To: Kaslin

“Those disappointed in the outcome of this election and of the Texas suit should not lose sight of the constitutional values that will last far beyond any one lawsuit and any one election.”

The election was stolen, GA will be stolen and Biden will pack SCOTUS, but at least I still have my constitution!


15 posted on 12/15/2020 10:28:06 AM PST by proust (Justice delayed is injustice.)
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To: Kaslin
Re: "constitutional values that will last far beyond any one lawsuit"

Get real.

They will last until Biden-Harris appoint two Judges.

After that, the Constitution will mean nothing.

16 posted on 12/15/2020 10:28:46 AM PST by zeestephen
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To: Kaslin
Utter 'effin baloney from start to finish. The Constitution is a compact between the states [Article VII of the Constitution].

Every state is harmed when another state violates federal election to/and commit[s] fraud.

17 posted on 12/15/2020 10:29:20 AM PST by AndyJackson
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To: rdcbn1
I've been saying for days that the REAL litigants should have been the state legislatures themselves.

That's probably what Texas wanted to accomplish anyway. The only reason NOT to include Nevada among the named defendants was that Nevada has a Democratic legislature, unlike the other four states named in the lawsuit.

18 posted on 12/15/2020 10:30:30 AM PST by Alberta's Child ("There's somebody new and he sure ain't no rodeo man.")
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To: Kaslin

Good grief! Not this nonsense again...

I don’t even want to go into how poorly reasoned and now heavily inclined Thomas Perry’s opinion piece is.

It’s just another subjective opinion... and off the mark.

his ramblings are mute to me.


19 posted on 12/15/2020 10:30:45 AM PST by Bellagio
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To: Kaslin

The people vote for the president. We know Trump won.

Everyone knows Trump won. The Supreme Court, the Senate, the House, the media- from tucker to Laura Ingraham to Rachel maddow- Hillary, Obama, Biden, the Georgia maniacal klowns, Bill Barr, the CIA, the FBI and the CCP.

People can talk and write and deliberate all they want, but the people of this country are the ones in charge. So the people I just listed who either work for us or who do not have any business in this decision had better either figure out how to help otmr get out of our way.


20 posted on 12/15/2020 10:31:04 AM PST by stanne
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