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TomSlick

(10,981 posts)
Fri Dec 11, 2020, 09:37 PM Dec 2020

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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The Velveteen Ocelot

(114,681 posts)
8. I've always gotten those two mixed up, too.
Fri Dec 11, 2020, 09:49 PM
Dec 2020

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

OAITW r.2.0

(23,290 posts)
5. Sounds to me, Aliots and Thomas wanted the USSC to accept the case so they
Fri Dec 11, 2020, 09:43 PM
Dec 2020

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.

TomSlick

(10,981 posts)
6. The "flood gates" problem is overwhelming.
Fri Dec 11, 2020, 09:45 PM
Dec 2020

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

The Velveteen Ocelot

(114,681 posts)
7. Alito and Thomas have previously opined that the Supreme Court *must* hear
Fri Dec 11, 2020, 09:48 PM
Dec 2020

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.

TomSlick

(10,981 posts)
16. I researched this last night.
Fri Dec 11, 2020, 10:02 PM
Dec 2020

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.

gratuitous

(82,849 posts)
9. My reading of Alito and Thomas
Fri Dec 11, 2020, 09:53 PM
Dec 2020

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.

marylandblue

(12,344 posts)
12. Thomas and Alito said the court had no discretion to reject the case.
Fri Dec 11, 2020, 09:55 PM
Dec 2020

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).

 

StarfishSaver

(18,486 posts)
14. Granting leave to file amicus briefs is not "relief
Fri Dec 11, 2020, 09:59 PM
Dec 2020

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.

TomSlick

(10,981 posts)
17. You may be correct. Again, the dissent is unclear.
Fri Dec 11, 2020, 10:05 PM
Dec 2020

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

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