Yesterday evening, the Supreme Court issued an order Texas v. Pennsylvania. No, the Supreme Court did not “decimate” the President’s claims of voter fraud. The short order tossed the case on jurisdictional grounds, and said nothing about the merits.
In the wake of the decision, lawyers closely parsed Justice Alito’s separate statement, joined by Justice Thomas. I found it cryptic. I encourage you to read Howard Bashman’s meticulous analysis. After some reflection, I’ve concluded that Justice Alito wanted to say more, but didn’t, and instead put out an ambiguous statement that left his options open. But in doing so, Alito had to have known that President Trump would see any dissent as a signal that Trump really won. I’m sure QAnon will see signals buried in the statement. Alito either didn’t know Trump would misread his order, or didn’t care. I lean towards the latter.
The decision has brought a predictable raft of tweets from the President. Here is a smattering.
First, before the Court decided, Trump repeated his common refrain: “wisdom” and “courage” are on his side:
If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!
— Donald J. Trump (@realDonaldTrump) December 11, 2020
Second, after the decision, Trump tweeted that the Court lacked “wisdom” and “courage.”
The Supreme Court really let us down. No Wisdom, No Courage!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Third, Trump continued his skepticism of “standing” doctrine.
….that, after careful study and consideration, think you got “screwed”, something which will hurt them also. Many others likewise join the suit but, within a flash, it is thrown out and gone, without even looking at the many reasons it was brought. A Rigged Election, fight on!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
The Supreme Court had ZERO interest in the merits of the greatest voter fraud ever perpetrated on the United States of America. All they were interested in is “standing”, which makes it very difficult for the President to present a case on the merits. 75,000,000 votes!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
As a matter of first principles, he’s not wrong about standing doctrine. In the abstract, it is unsatisfying to admit the government broke the law, but because no one was injured, that lawlessness goes unremedied. I routinely have to explain standing doctrine to the popular press, and people don’t get it. State courts can decide cases of great import without having to establish Article III standing. And foreign courts can handle these sorts of disputes very quickly. Think of the recent U.K. case about the proroguing of Parliament.
Fourth, the necessary implication of a standing ruling is that the Court did not weigh in on the merits.
“We’ve not gotten any court to judge this (the vote) on its merit.” @DanPatrick of Texas. It is a legal disgrace, an embarrassment to the USA!!!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Fifth, non-lawyers will simply see a standing ruling as a “dodge.”
Kayleigh on Supreme Court: Yeah there’s no way to say it other than they dodged. They dodged. They hid behind procedure and they refused to use their authority to enforce the constitution. pic.twitter.com/VLi04yIrIC
— Acyn Torabi (@Acyn) December 12, 2020
Sixth, predictably, people misread the Alito/Thomas statement. Again, the two Justices could have ignored their longstanding beef about mandatory jurisdiction just this once. But they didn’t. And they could have made clear they would have denied all relief. But they didn’t.
“Justices Alito and Thomas say they would have allowed Texas to proceed with its election lawsuit.” @seanhannity This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never even given our day in Court!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
The Court could have structured the opinion to avoid any dissent. For example, the Court could have granted the motion for leave, but denied any relief on the exact same jurisdictional grounds. I suspect Thomas and Alito would have gone along with that request. The Chief may not have been willing to set a precedent about granting motions for leave. If so, that choice was pennywise but pound-foolish.
Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com