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.
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.”
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.
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.
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.
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.
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.
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.
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.
this is BS
the effect of the entire State of Texas’s vote was effectively nullified, rendered worthless or moot, as consequence of the election theft operation in PA, MI, WI, GA, AZ. NV, etc.
the disenfranchisement of an entire state’s electorate (and many more states’ voters, to0) is a very extreme (and criminal) adverse impact ... one that the constitutional framers clearly intended to provide judicial redress, remedy for
indeed, it is difficult to imagine a case where the plaintiffs could have had any greater “standing” than this one!!! perhaps had PA amassed its state troopers and physically invaded Texas, maybe,
also,
It’s okay to decide on killing babies and forced healthcare, none of which is in the Constitution! Traitors also lie.
Regarding the misguided Roberts Court's politically correct (imo) argument for standing needed for Constitution's Article III, Section 2, Clause 1, please consider this. Justice Joseph Story had explained the following about the importance of resolving conflicts between the states in his Commentaries on the Constitution 3.
Story had explained that, because of history of conflicts between the original colonies, the delegates to the Constitutional Convention gave states unrestricted access to the Supremes as a last resort to try to resolve conflicts that could lead to armed conflict between the states.
§ 1674. "Under the confederation, authority was given to the national government, to hear and determine, (in the manner pointed out in the article,) in the last resort, on appeal, all disputes and differences between two or more states concerning boundary, jurisdiction, or any other cause whatsoever [!!! emphases added]. Before the adoption of this instrument, as well as afterwards, very irritating and vexatious controveries existed between several of the states, in respect to soil, jurisdiction, and boundary; and threatened the most serious public mischiefs. Some of these controversies were heard and determined by the court of commissioners, appointed by congress. But, notwithstanding these adjudications, the conflict was maintained in some cases, until after the establishment of the present constitution." —Justice Joseph Story, Article 3, Section 2, Clause 1, Commentaries on the Constitution 3, 1833, The University of Chicago Press§ 1675. "Before the revolution, controversies between the colonies, concerning the extent of their rights of soil, territory, jurisdiction, and boundary, under their respective charters, were heard and determined before the king in council, who exercised original jurisdiction therein, upon the principles of feudal sovereignty. This jurisdiction was often practically asserted, as in the case of the dispute between Massachusetts and New Hampshire, decided by the privy council, in 1679; and in the case of the dispute between New Hampshire and New York, in 1764. Lord Hardwicke recognised this appellate jurisdiction in the most deliberate manner, in the great case of Penn v. Lord Baltimore. The same necessity, which gave rise to it in our colonial state, must continue to operate through all future time. Some tribunal, exercising such authority, is essential to prevent an appeal to the sword, and a dissolution of the government [emphasis added]. That it ought to be established under the national, rather than under the state, government; or, to speak more properly, that it can be safely established under the former only, would seem to be a position self-evident, and requiring no reasoning to support it. It may justly be presumed, that under the national government in all controversies of this sort, the decision will be impartially made according to the principles of justice; and all the usual and most effectual precautions are taken to secure this impartiality, by confiding it to the highest judicial tribunal." —Justice Joseph Story, Article 3, Section 2, Clause 1, Commentaries on the Constitution 3,1833, The University of Chicago Press.
So by refusing to consider Texas’s evidence of alleged electoral vote manipulation in another state, the misguided Roberts Court has wrongly helped to increase tension between conflicted states imo, as opposed to examining evidence to try to help calm down the states as convention delegates had intended for SCOTUS to do to promote domestic tranquility insured in the Preamble to the Constitution.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility [emphasis added], provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
This article is all BS for a very simple reason. It is true Texas cannot make the rules for another state, but the Constitution does have stipulations. In this matter, the plaintiff states violated the US Constitution which all states must obey in the process. Texas as one state of the 50 has standing, it is that simple.
Conservatives have to obey laws.
Liberals do not.
So the libs are always going to win.
This article is correct.
I am an attorney with over a dozen years of almost exclusive Federal Court jurisdiction. One state does not have standing to sue another over how it runs its elections. A voter whose voting rights is affected has standing, as does the candidate. But not another state.
Allowing this case to proceed would result in any state suing any other over how it rungs its affairs. CA would sue TX over TX gun laws. It would be a free for all. And since SCOTUS has original jurisdiction over lawsuits between states, the SCOTUS would be overwhelmed with every state second-guessing how other states run their business.
I’ve said elsewhere, the TX lawsuit was frivolous on its face, and was just a show to placate PDJT and his supporters.
Once SCOTUS dismissed the lawsuit (as it should have) all the RINOs who signed off on it will come back to us and say “Welp, we did our best, and lost. Blame SCOTUS.” Then they will ask us for our support, our campaign contributions, and our votes, so that they can go back to business as usual.
They were right and the law was on their side.
The Supreme Court could have accepted it and ruled in Texas favor as a matter of law.
The Supreme Court carefully selects cases based not just on their merit, but on worthy they are shaping the law and setting precedent.
A very reasonable interpreting rationale was that, for at least some of the Justices, the Texas suit did not contain the case law, policy position and public perception that they wished to adjudicate to resolve the issue.
I’ve been told for the past 20 years we are doomed as the Roman Empire. I’m supposed to read about it in order to realize where we are headed. For what reason would I do this?
The constitution is there to protect our freedom. It’s easy to give it away. I swore to protect and defend it as should all citizens.
Quitter.
The Roberts Court will go down as one of the worst, if not the worst court in American history.
There was a thread here earlier about screaming matches between Justices, with Roberts screaming essentially that if they took the case there would be riots by BLM ANTIFA terrorists so they'd better not take the case at all.. In other words, mob rule and not rule of law.
No idea how true that report was.
if they had done it that way, they would have docketed the case, heard arguments on standing before getting to the merits, then immediately dismissed it. they didn’t do that b/c they knew how they’d come out didn’t want to create a cloud of uncertainty over the outcome
It may go down as the last...
I believe that te skirmish was passed over. The ruling spoke to other issues that standing and gave Trumps lawyers a road map to follow on the real case
The left won’t have to pack the Court. It’s done.
Historic cowardice.
> it would have been perceived as overturning the election based on a chicken s**t technicality
The US Constitution is not a “chickenshit technicality”.
Every state has on its books a procedure for a defeated candidate to challenge the results in that state's courts.
>In a nutshell, that’s what Texas was arguing.
They were right and the law was on their side.
The Supreme Court could have accepted it and ruled in Texas favor as a matter of law.
The Supreme Court carefully selects cases based not just on their merit, but on worthy they are shaping the law and setting precedent.
A very reasonable interpreting rationale was that, for at least some of the Justices, the Texas suit did not contain the case law, policy position and public perception that they wished to adjudicate to resolve the issue.<<
And as Sidney Powell said, “Well, someone has standing”
This is why the SC did not want to touch the Texas case, they knew Texas was right, the SC had just made the ruling about a month before this that it is unconstitutional, therefore illegal, for anyone other than state legislatures to enact or alter election laws.
State after state after state did so, which rendered millions of votes illegal.
There is no argument against that, it is cut and dried. This election was a farce and should not be allowed to stand. Even the State of Texas violated the US Constitution. Governor Abbot extended early voting. The Texas GOP said “um, you can’t do that, only the state legislature can do that” and sued him to stop it. The Texas Supreme Court, incorrectly I might add, ruled in Abbot’s favor and allowed him to extend early voting. All those votes are illegal and should not be counted. It’s plain as day.
So where we stand now is, either we obey the law of the land as established by the US Constitution, or we throw the law and the Constitution out the window. The only way to right this is a new election that is done so by the law as established by the US constitution. I will not participate however in another election done by electronic voting. That is another major issue that must be addressed.
No interest? Then I guess Biden won’t be president over the State of Texas, I presume?
“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. “
No, their main argument (not even mentioned here) was far, far stronger - namely, that illegal votes cancel legal votes (disenfranchise legal voters), not just in the state where the illegal votes were cast - but in all states.
This argument is unassailable.
However, the SCOTUS may have done Team Trump a favor by rejecting the case, because regardless of standing, the specter of one state suing another state had serious pitfalls - at least with regard to public appearance:
The illegality in PA, for example, was perpetrated by certain large Democrat controlled precincts - they are the entities that should be sued - not the Commonwealth of Pennsylvania as a whole.
In fact, Pennsylvania as a whole was the victim, not the perpetrator. For public appearances, this distinction is all-important - and the Texas suit had the potential of blurring that distinction.
Put another way, it is far better for the American people to witness the good people of PA, GA, MU, AZ, WI, NV, etc. fighting for fair elections in their own states, against corrupt city Democrats who perpetrated the fraud in their state.
For what it’s worth, American Civil Liberties Union (ACLU) members living in a given town and who can truthfully allege that they occasionally frequent the municipal buildings thereof and who claim to be damaged by the excessively Christian content of so-called “holiday displays” on the green spaces in front of or between such buildings that include a crèche or Nativity scene, are never told that they lack standing.
Check out the contents of some of these crèche cases some day. They are utterly ridiculous.
As in many other situations in our stricken country, the question of standing seems to be decided in one direction or another depending on whose ox is being gored.
“The Constitution is a compact between the states [Article VII of the Constitution].”
Well, it was. That ceased to be a legal possibility once the Civil War happened and removed any illusion of state sovereignty. You can’t enter a compact if you have no sovereignty to enter compacts in the first place.
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