Andrew McCarthy: Supreme Court right to refuse to block Biden election — rejects absurd legal theory

It remains mystifying why Republican officials supported this pro-Trump effort

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The U.S. Supreme Court denied Texas’s motion Friday to file a complaint against four other states, in essence seeking to disenfranchise over 20 million voters and overturn the 2020 presidential election. The high court’s decision is being reported as a 7-2 ruling. Although that would be one-sided, it fails to convey just how one-sided is the peremptory order the justices issued.

The suggestion in some media reporting is that Justices Samuel Alito and Clarence Thomas “dissented” from the court’s order. That is inaccurate. The position taken by these two justices has nothing to do with the merits — or, better, the utter lack of merit — of Texas’ legal claims. Rather, over the past few years, Justices Alito and Thomas have developed a position that the Supreme Court has no authority to decline to entertain lawsuits that pit states against each other.

Unlike the vast majority of cases, which reach the high court on appeal, lawsuits between states invoke the court’s “original jurisdiction” under the Constitution. That is, such a case is filed in the Supreme Court as if it were a trial court, with no lower court having heard the case, developed an evidentiary record, and made findings of fact and conclusions of law.

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One of the many things that make the Supreme Court unique is that it controls its own docket — parties have to petition for their cases to be accepted for review; the justices cannot be compelled to accept them. But Justices Alito and Thomas hold a minority view that this standard does not apply to original jurisdiction cases. They believe the court must accept them. That is not a position about the merits of any case; Alito and Thomas merely reason that the court is not authorized to refuse to consider such cases.

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In the unsigned order issued Friday night, the court denied Texas permission to file its lawsuit, citing the Lone Star State’s “lack of standing” to sue because it had “not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

The court further noted that Texas had other motions pending. In conjunction with its motion to file the lawsuit, Texas had sought a preliminary injunction and a temporary restraining order to enjoin the four states it sought to sue — Pennsylvania, Michigan, Wisconsin and Georgia — from taking further actions to certify electors and to enable those electors to vote in the Electoral College.

Alternatively, Texas moved for the court to vacate the four states’ elections, cancel their appointment of electors (who are pledged to vote for presumptive President-elect Joe Biden), and direct those states’ legislatures to allocate presidential electors in a manner that does not rely on the popular elections they held — i.e., to allow Republican-controlled legislatures to appoint electors pledged to vote for President Trump.

In its Friday order, the Supreme Court also dismissed those motions as moot. In Justice Alito’s brief statement, joined by Justice Thomas, he stated that while he would grant Texas motion to file the suit, he “would not grant other relief,” and would express no view on any other issue.

Translation: All Alito and Thomas are saying is that they think the Constitution gives the high court no choice but to let Texas file the suit; they did not believe Texas claims were worthy of granting an injunction so the court could freeze matters in place while it heard the suit.

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Moreover, the two justices were making clear that, although they would agree to accept the suit that did not necessarily mean they disagreed with the court’s conclusion that Texas lacked standing.

In a nutshell, seven justices believed there was no requirement that the Supreme Court take the case at all. Yet, before refusing, they took enough of a peek at the claims to reach the easy conclusion that Texas had no lawful basis to file the suit because it has no interest in how other states conduct elections.

In a technical difference involving process, Justices Alito and Thomas believe the court is technically required to allow the suit to be filed first; but after that, they would likely have reached the exact same conclusion as the rest of the court on the matter of standing, and they agreed with the remaining justices that Texas’s claims did not merit any other relief.

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Texas filed a totally unworthy lawsuit, which even its own solicitor general (the lawyer who usually represents the state before the Supreme Court) did not endorse. The Supreme Court gave the suit exactly the curt denial it deserved.

What remains mystifying is why GOP officials in 18 Republican-leaning states, along with over 100 Republican House members — including House Minority Leader Kevin McCarthy, R-Calif., who would like to be speaker someday — lined up to back an absurd legal theory that, if successful, would have invited blue states, through lawsuits, to dictate how red states govern themselves.

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