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Fri Dec 11, 2020, 09:37 PM

A small town lawyer's read of the SCOTUS Order.

I will allow that I am not a constitutional law expert but here's what I read.

First, the SCOTUS Order is a miscellaneous order - not a signed opinion. This is the original jurisdiction (cases between states) equivalent of a denial of certiorari. The Court simply found that Texas did not have standing to challenge the election process in other states. This decision is obviously correct and the correct reason for the Court to summarily terminate the case. This disposition is a serious slap-down.

Second, the dissent by Alito and Thomas is far from clear. They would allow the case to be filed - in fact it already had - but would deny further relief. The dissent expresses no opinion on the merits of the case. I think the other relief referenced are the various motions to file amici briefs which, of course, are moot. I am unconvinced Scalia and Thomas expressed an opinion concerning the merits of the Texas pleading.

It would have been nice if Alito and Thomas had put on their big-justice robes and stood up for democracy but that is really too much to hope.

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Arrow 17 replies Author Time Post
Reply A small town lawyer's read of the SCOTUS Order. (Original post)
TomSlick Dec 2020 OP
snowybirdie Dec 2020 #1
TomSlick Dec 2020 #2
The Velveteen Ocelot Dec 2020 #8
TomSlick Dec 2020 #11
dweller Dec 2020 #15
unblock Dec 2020 #3
TomSlick Dec 2020 #4
OAITW r.2.0 Dec 2020 #5
TomSlick Dec 2020 #6
OAITW r.2.0 Dec 2020 #10
The Velveteen Ocelot Dec 2020 #7
TomSlick Dec 2020 #16
gratuitous Dec 2020 #9
OAITW r.2.0 Dec 2020 #13
marylandblue Dec 2020 #12
StarfishSaver Dec 2020 #14
TomSlick Dec 2020 #17

Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:39 PM

1. If you are a lawyer

You know Scalia died five years ago.

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Response to snowybirdie (Reply #1)

Fri Dec 11, 2020, 09:40 PM

2. Yes, I am a lawyer. I will fix the error.

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Response to TomSlick (Reply #2)

Fri Dec 11, 2020, 09:49 PM

8. I've always gotten those two mixed up, too.

Scalia was the smarter one, I think. Alito is a troglodyte like Thomas.

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Response to The Velveteen Ocelot (Reply #8)

Fri Dec 11, 2020, 09:53 PM

11. Concur. However, that made Scalia the more dangerous.

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Response to snowybirdie (Reply #1)

Fri Dec 11, 2020, 10:00 PM

15. I've seen it written lately

as Scalito... which actually makes sense

✌🏻

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:41 PM

3. "Scalia and Thomas"? Old habits die hard....

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Response to unblock (Reply #3)

Fri Dec 11, 2020, 09:43 PM

4. The celebratory wine didn't help.

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:43 PM

5. Sounds to me, Aliots and Thomas wanted the USSC to accept the case so they

could bloviate on the merits. By accepting this non-sense as a serious case would mean opening the Court to tons of idiotic cases in the future.

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Response to OAITW r.2.0 (Reply #5)

Fri Dec 11, 2020, 09:45 PM

6. The "flood gates" problem is overwhelming.

If Texas can challenge the election in another state, there is no end of the potential mischief in the future.

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Response to TomSlick (Reply #6)

Fri Dec 11, 2020, 09:53 PM

10. It would be chaos. We'll have to add a lot more judges to handle the caseload.

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:48 PM

7. Alito and Thomas have previously opined that the Supreme Court *must* hear

any state vs. state case, because those are the only cases over which the court has both original and exclusive jurisdiction. 28 U.S. Code  1251 (a) says "The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States." Alito and Thomas have argued in previous cases that the fact that exclusive jurisdiction means that the Supreme Court is the only court where those cases can be heard means it would be unfair to the complaining state to dismiss its case without even a preliminary hearing, because that state would have no other court to hear it. It's not an entirely stupid opinion, but it's not the way the court has traditionally handled those cases. So their dissent actually is quite clear, given their stated opinion on these cases. They just wanted to make the point that their opinion that the court must hear the case doesn't necessarily mean they think the case has substantive merit.

To me, though, they have it backwards. If Texas doesn't have standing, the court doesn't have subject matter jurisdiction, meaning they couldn't hear the case anyhow.

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Response to The Velveteen Ocelot (Reply #7)

Fri Dec 11, 2020, 10:02 PM

16. I researched this last night.

The Supreme Court rule essentially makes the FRCP applicable in original jurisdiction cases. The dissent notwithstanding, a 12(b)(1) or (6) dismissal for lack of standing was appropriate.

I seems incredible that Alito and Thomas think that any original jurisdiction complaint must be allowed to proceed through complete briefing and oral argument. If the Texas pleading proves anything, it's that the imagination of state AGs knows no bounds.

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:53 PM

9. My reading of Alito and Thomas

They didn't think the Supreme Court had the discretion to turn down the Texas complaint flat, that the Court had to accept the complaint, no matter how spurious it was. The other seven justices didn't feel that just because some red-crayon scrawl of a petition had been dropped in over the transom, the Court wasn't obliged to waste its time considering it.

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Response to gratuitous (Reply #9)

Fri Dec 11, 2020, 09:55 PM

13. I concur.....

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:55 PM

12. Thomas and Alito said the court had no discretion to reject the case.

Someone on DU earlier today explained that they always write dissents when SCOTUS rejects an original jurisdiction case because thet think they have no authority to reject them. They think they have to accept even a totally baseless case, then rule on the (lack of) merit. So I see this as just another dissent for an unrelated trivial issue, only they wrote it in short form due to time constraints (and probably the other 7 saying they weren't going to wait for a pointless lengthy dissent).

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Response to TomSlick (Original post)

Fri Dec 11, 2020, 09:59 PM

14. Granting leave to file amicus briefs is not "relief

 

Alito and Thomas, in saying they would not grant any other relief, were referring to the the relief requested in the complaint - i.e., the overturning of the election results in the four states.

Their disagreement with the order was based on their long-held belief that states bringing original actions should be given leave to file their complaints. They felt the Court should have allowed the states to file their complaint, but they made clear that they would not have granted the relief requested in the complaints.

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Response to StarfishSaver (Reply #14)

Fri Dec 11, 2020, 10:05 PM

17. You may be correct. Again, the dissent is unclear.

However, the dissenters go out of their way to say they express no opinion on the merits of the case.

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