No dissents noted. This is the Court’s order in its entirety.
Not so much as a line of legal reasoning, eh? Maybe that’s a nod to the fact that today is, after all, the “safe harbor” deadline and as I pointed out in this post the Court has been sensitive to that before. It mattered to the majority in Bush v. Gore, which rushed out its ruling before that deadline passed. Today’s Court may have done the same thing: With little time left to draft an opinion before the deadline expired, they chose to simply get their ruling on the books instead.
Which means Pennsylvania should meet the “safe harbor” deadline. There’s no more litigation pending in this case. By the end of the day, Congress will be bound by statute to accept Pennsylvania’s 20 electoral votes for Joe Biden. All thanks to the alacrity of a conservative-dominated Supreme Court.
Congrats to Gorsuch, Kavanaugh, Barrett, and Clarence Thomas on having become The Ultimate RINOs.
Given the open disdain other courts have showed for Trump-related election lawsuits and Kelly’s suit in particular, I wonder if the brevity here wasn’t also partly motivated by the Court not wanting to have to spell out just how extraordinary and contemptible it is that the petitioners would ask them to disenfranchise millions of voters. The Court guards perceptions of its legitimacy jealously. A rhetorical beating delivered to Kelly and Trump at length wouldn’t have served that cause well among Republicans. Better to just deliver a thumbs down.
There’s another possible explanation for the brevity. As law prof Jonathan Adler notes, the core problem with Kelly’s suit was that it raised questions about state law. The state supreme court is the final arbiter of those, not the U.S. Supreme Court, so ultimately what is there to say? The petitioners tried to transform those state issues into constitutional ones in order to get it before SCOTUS, which smacked of “repackaging,” in the words of Third Circuit Judge (and Trump appointee) Stephanos Bibas. More from Adler:
To my mind, the biggest problem with this suit is the lack of a real federal question. Whatever one thinks of the state law questions, the attempts to make a federal case out of these state law claims is quite strained, and the existence of independent and sufficient state law grounds should insulate the Pennsylvania Supreme Court’s decision from review.
It is also worth noting that the underlying theory of Rep. Kelly’s suit is in tension with the theory underlying Texas Attorney General Paxton’s latest suit and other recent election suits. Whereas others have claimed that state legislatures have near-plenary authority to determine the manner of selecting presidential electors — and therefore election law changes made by non-legislative actors are suspect — Rep. Kelly claims the state legislature is constrained by the state constitution, but not as interpreted by state courts. So whereas other suits complain about state election administrators or state courts altering state election law without legislative approval, this suit claims that the constitutional problem is that Pennsylvania state courts failed to overturn changes to state election law made by the legislature. It is almost as if the theories are not based on principled consideration of the underlying constitutional questions, but are instead constructed to ensure the desired outcome.
I’m glad he brought up the Texas suit that Ed wrote about this morning. If Kelly’s suit was a 9-0 dismissal, how do you suppose the one from Texas seeking to disenfranchise voters across multiple swing states will fare?
The point to bear in mind here is that, as dubious as it was, Kelly’s lawsuit was one of the stronger suits filed on Trump’s behalf during the post-election period. There was a legitimate question underlying it as to how to reconcile the state statute permitting mail-in votes with the state constitution specifying in-person voting. There was also a question of whether petitioners were caught in a Catch-22, as Ted Cruz has insisted, since they lacked standing to challenge that statute before the election and were barred by laches from pursuing it after the vote. But ultimately those were questions for the Pennsylvania Supreme Court, not SCOTUS. The former tossed them and the latter seemingly deferred. Case closed.
Hard to argue with Neil Cavuto:
“Joe Biden now clearly the President-elect of the United States” pic.twitter.com/35yEtPPoTG
— Acyn Torabi (@Acyn) December 8, 2020
He was “clearly” president-elect before. Nothing that happened in this case was going to knock him down below 270 electoral votes, even if SCOTUS had tossed Pennsylvania’s electoral votes. But the fact that today’s order was so terse and apparently unanimous for, as I say, a suit that had a little more merit than the average Sidney Powell fantasia is all the proof we need that the Supreme Court isn’t coming to the rescue here.
God only knows how Trump will take that. He doesn’t care a thing for law, statutes, or what have you. He understands “loyalty” and his three appointees didn’t show it today. Presumably they’re the next to be demagogued:
Meanwhile, over on planet-Parler, the Supreme Court’s decision is being met (as many things there are) with calls for martial law and armed insurrection. pic.twitter.com/NNmM685zHO
— Brad Heath (@bradheath) December 8, 2020
There are only two steps left in this pitiful saga. The electoral college meets on Monday so maybe there’ll be some half-assed legal effort to enjoin them from voting or, failing that, to try to persuade Biden’s electors to switch to Trump. Then Congress meets on January 6 to record the electoral college’s vote, which should be a big day for angry “last stand” speeches from the likes of Matt Gaetz and Paul Gosar or whoever else before the House and Senate inevitably cinch Biden’s victory. Plenty of rage and anxiety and hallucinatory theories about snatching victories from the jaws of defeat still to come, for no g-ddamned reason whatsoever except to make people more bitter and contemptuous of their national community.
I’ll leave you with this, which is as true as it is funny.
— John McCormack (@McCormackJohn) December 8, 2020
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