The Supreme Court.
I agree with almost everything co-blogger Jonathan Adler says about today’s decision in his excellent post. He is particularly right to point out that the verdict is unanimous in the sense that all nine judges refuse to give Texas the extraordinary relief it was seeking. Judges Alito and Thomas differ by the majority only in the question of whether the Court has the power to refuse permission to lodge a complaint in an “original jurisdiction” case in which one state is suing another. This is an important technical problem that has occurred in the past and is likely to recur. But it has nothing to do with the merits of the Texas arguments. As I explained in a previous post, denying permission to lodge a complaint was probably the easiest and easiest way for the Court to get this case closed quickly, and that may be why the judges took this approach.
It is also important that all six Conservative judges – including all three Donald Trump himself appointed – voted with a majority. Indeed, none of the three Trump-appointed people (including the recently appointed Amy Coney Barrett, who Trump wanted to quickly approve in part to settle electoral disputes) agreed with Alito and Thomas’ view that Texas should file its complaint (even if it did should only be rejected immediately). This undermines both Trump’s own expectation that his officials should do what he wants and some leftists’ fears that they could do just that. Unlike all too many GOP politicians, the Conservative judges tonight have shown that they are neither Trump toads nor partisan hacks and affirmed the independence of the court.
Today’s ruling also shows that Alito and Thomas are unlikely to win a majority for their position in original jurisdiction cases anytime soon, although there is a solid case out there that could be right. None of the other seven judges seem to agree with them.
I am a little disappointed that the Tribunal chose standing as the basis for its decision to refuse to lodge applications. For reasons I have already pointed out, I am not a fan of the modern doctrine of constitutional prestige and believe that it should be rolled back and perhaps even eliminated entirely. That said, the judges rightly concluded that Texas is not subject to the doctrine as it currently exists. The reasons for this are well explained in the briefs filed by the defendants in the case. It was never likely that the Tribunal would fundamentally rewrite the doctrine of standing in such a case.
I worry that the court’s decision to dismiss the case on procedural grounds matched Trumpist’s claims that plaintiffs were indeed right on the matter, and that if only the judges had been willing to advance their claims, Texas would have won make, give more fuel. The Texas position also had numerous major flaws. But dedicated partisans are likely to ignore this or be unaware of it.
In general, I fear today’s verdict will not stop the dangerous tide of conspiracy over the election of Trump and many of his allies, and it will not prevent many of his supporters from continuing to believe such claims. However, the Supreme Court cannot be expected to resolve all of the shortcomings of our screwed up political discourse. The work of the judges is much closer. And tonight they did well.