We Have No Idea What The FUCK You’re On About, Texas, But Alito & Thomas Have THOUGHTS Anyway

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

YAY! Let’s all celebrate! (Unless you’ve done that already at some OTHER FreethoughtBlog.) Though SCOTUS doesn’t specify where in Article III they find the scope of judicially cognizable interests for disputes between states, they’re pretty clear here: there’s nothing for SCOTUS to judge. Go home, Texas. You’re drunk.

Now this wasn’t a unanimous rejection. Samuel Alito & Clarence Thomas would have accepted the suit, but even Thomas & Alito said nothing about the merits of Texas’ case, much less the questionable sanity of its filing. They merely said that they don’t believe that SCOTUS is allowed to turn down a filing on behalf of a state when that state names another state as defendant:

we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. … I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

They did provide a citation in support of this position … but it’s from earlier this year, citing Thomas himself, and in a dissent not a controlling opinion. It is, frankly, worse than citing yourself from one of your previous scientific papers and pretending that you therefore have independent support for the conclusions in your current paper. Citing your paper because it has relevant data is one thing. Citing it to show that others share your opinion when the paper was written by you? Something else. At least in a scientific paper it’s possible that your reasoning was further justified with the data from experiments or studies described therein. But if Thomas had any legitimate authority to support him in February this year, he and Alito would have just cited it today. So… NOPE! There’s nothing.

But wait! You say. There must be something. Thomas wouldn’t have made up his jurisdictional claims out of whole cloth, would he? Would he?!?!?

Yes, you’re very smart, now shut up.

The problem for Thomas, well, it’s not really a problem for Thomas. His view lost anyway. But the problem for the rest of us is that Thomas is being dishonest. He mentions a few dissents, but dissents aren’t precedents which the court has any reason to respect. Ultimately there is only one case where he cites the opinion, rather than the dissent. And thus it’s fair to say he is relying entirely on this one case from 1821 styled Cohens v. Virginia, 19 U.S. 264 (1821) in which precisely which cases SCOTUS has appellate jurisdiction was at issue. Despite Thomas’ use of Cohens, I’m going to tell you why this is so bad a precedent, so inapposite, that it ends up being a perfect case for Trump’s defenders to rest upon. It is, in fact, so terrible/perfect that Alito hid this citation by citing it only indirectly through Thomas’ dissent earlier this year in Arizona v. California.

In Cohens, the State Commonwealth of (Stuck-up) Virginia had entered into an agreement about the disposition of a case against an individual who had broken Virginia’s anti-lottery & anti-gambling statute. It’s the kind of agreement we don’t see anymore. Now we just decide the case one way or another, then have the losing party appeal while one court or another stays the judgment until the appeal is settled. In the olden times they sometimes simply entered an agreement that a particular question would be appealed and that upon settling the question, then the case would be disposed of in one of two ways depending on the answer to that question. This was one of those cases. It was not disposed, pending appeal.

The question here was that the “gambling” prohibited was the selling of lottery tickets by individuals on behalf of the District of Columbia, as authorized by a federal law (given that the federal government and no state controls the territory within the district). The district needed those funds, and no untoward or nefarious intent was involved. This was a measure to avoid taxing persons to support the district. All noble enough. It does tend to prey on people addicted to gambling, but we do the same thing these days to support schools and other projects. Still, Virginia had a law & it wanted to find two men guilty. But the men had reason to claim that they were authorized by federal law, and with good reason. After all, the constitution itself says that when state law & federal law conflict, federal law shall prevail.

But this early in the republic, it hadn’t been the case that state prosecutions were appealed to the Supreme Court of the US. Yet here there really was a case involving federal law, and by dint of purported conflict between federal law and state law, there was a constitutional question. SCOTUS is the final arbiter of cases & controversies involving federal law and the constitution, but framed in just the right way — “Is this state law valid as applied?” — the question can appear to be one of only state law, and thus the decisions of the courts of Virginia in the case should not be questioned or overturned by federal courts.

Virginia’s appeal was based first on the question of jurisdiction. In the view of the Commonwealth Stuck-up State, there was no basis for jurisdiction. Article III of the US constitution lists the circumstances under which a federal court can (or must) take jurisdiction in a case, and none of these include appeals of the decisions of state courts interpreting state law.

SCOTUS saw the jurisdiction question differently. SCOTUS saw that the question might be whether or not the state law was valid as applied, but the reason the question comes up at all is because there is a purported conflict with federal law, and that conflict must be disposed according to the rules of supremacy set forth in the US Constitution, and questions involving the application of the US Constitution are very much under the jurisdiction of SCOTUS.

The court put it this way:

The counsel who opened the cause said that the want of jurisdiction was shown by the subject matter of the case. The counsel who followed him said that jurisdiction was not given by the Judiciary Act. The Court … supposes that their tendency is to show that this Court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the State court, because neither the Constitution nor any law of the United States has been violated by that judgment.

The questions presented … exclude the inquiry whether the Constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective.

Translation: There is no federal law or constitutional provision violated, so the court has no role, or if a law or provision was violated, the Constitution does not permit the court to order a state to take any action, therefore no remedy is available and the case is irrelevant. — cd

They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force.

Interrupting to say, YOUCH! That is some smoking’ hot jurisprudence right there. Chief Justice is saying that Virginia’s arguments amount to, “If the feds don’t like it, they can launch a war against us.”

They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, but that this power may be exercised in the last resort by the Courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined, for he who demands decision without permitting inquiry affirms that the decision he asks does not depend on inquiry.

And now they’re saying that Virginia’s arguments amount to a denial that a single Supreme Court exists. Again, those are some serious fightin’ words from a lawyer who is a justice on the court whose existence and power are being questioned.

If such be the Constitution, it is the duty of the Court to bow with respectful submission to its provisions. If such be not the Constitution, it is equally the duty of this Court to say so, and to perform that task which the American people have assigned to the judicial department.

Wonder which way he’ll rule on the jurisdictional claim?

To understand the final decision, you must know that the form taken by one of Virginia’s arguments is this: SCOTUS is given original jurisdiction in some cases, including cases where a state is a party, but is given appellate jurisdiction in all others. Virginia thus claims that SCOTUS should have held the trial prosecuting the lottery case within SCOTUS’s own courtroom and before SCOTUS’ own justices if it wanted a say. If it failed to take original jurisdiction, however, it cannot exercise appellate jurisdiction because the phrase “all other cases” excludes the possibility that an original jursidiction case could be held elsewhere and appealed to SCOTUS.

Got that? I won’t keep you in further suspense:

It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

The bold text here is the only bit of support Thomas finds anywhere in any controlling opinion to support his opinion. And to a non-lawyer, this can seem dispositive. But Thomas is lying to you, because accepting jurisdiction does not mean accepting an appeal. No one doubts, because of this very case we’ve been discussing, the jurisdiction of SCOTUS when a person criminally convicted by a state under a state criminal statute appeals that conviction to SCOTUS. And yet, the vast majority of such appeals are denied. SCOTUS simply denies leave to appeal (also known as declining to grant a writ of certiorari) as an exercise of its jurisdiction. For the jurisdiction to decide an issue includes the jurisdiction to declare a case or motion baseless before a full hearing. This is similar to granting a motion to dismiss rather than having a full trial. Granting such a motion, or declining to hear an appeal, is not avoiding jurisdiction, it is the exercise of it.

Reread that sentence just above the bolded portion Thomas quoted:

With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us.

Thomas wishes you to find in this decision a spirit of noble diligence. (And Alito citing Thomas citing Cohens v Virginia wishes the same.) He wishes you to believe that he has no discretion but to hear Texas out, that he and Alito constitute a brave minority struggling against cowardly and political avoidance of the court’s duty by the majority. (Hell, he’s very nearly calling the other justices “lazy and shiftless”.)

But this is nothing like the case. Thomas himself must vote to deny certiorari with regularity. This does not disparage the court’s right to examine other cases or diminish the court’s jurisdiction. It is a proper exercise of the court’s power, used to tell an appellant, or in this case a plaintiff, that their case is simply not worthy of the court’s time.

In other words, the court recognizes that Texas’ suit presents no chance of winning for a number of reasons, including, as they said, failure to state a claim cognizable to the court. Hearing the case would be fruitless for Texas and counterproductive for a nation which needs no additional anxiety or uncertainty if the court is fully aware the outcome of the election will not be changed by Texas’ action.

In short, rejecting Texas’ petition at this stage is a manifestation of wisdom, not cowardice. One might skewer Thomas and Alito for failing to recognize wisdom when it is in front of them, but given how deceptively they reframe questions of discretion as rejection of jurisdiction, I rather think this is worse. Thomas and Alito are calling their fellow justices cowards not because they fail to see their wisdom, but because they are liars who deny what is apparent.

How fitting that these are Trump’s ultimate (yet still failing) defenders.










  1. says

    Thanks for the summary anent Thomas and Alito. I’d wondered what was up with Thomas citing his own dissent as support but not enough to check it out, seeing as the motion was denied for lack of standing as I expected. I used to have more stomach for this kind of thing.

  2. billseymour says

    Thanks for the explanation. I think I’m going to steal “Go home, Texas. You’re drunk.” 😎

    One minor quibble:  are the Commonwealths of Puerto Rico and The Northern Mariana Islands stuck-up territories?  In what way?

  3. says

    One minor quibble: are the Commonwealths of Puerto Rico and The Northern Mariana Islands stuck-up territories? In what way?

    Oh, I don’t actually care about a state stylizing itself a “commonwealth”. It always seemed weird to me that they wanted to be one of the “United States” but didn’t want to be a state. It felt like wanting to have it both ways. When I was a little kid I felt like they should just choose so we could say that we don’t have 50 states, but rather “46 states & 4 commonwealths” or whatever might be the final numbers once those entities make their final choices.

    So the instinct to make that joke in the first place does come out of a genuine reaction of confusion and dislike, but that reaction was from me at age 13 or whatever. I don’t actually care these days.

    But that said, even as a kid I don’t think that “commonwealth of Puerto Rico” would have bothered me because they weren’t being counted as a state at the same time they were insisting that they weren’t a state. You can’t really make the “state commonwealth” joke since Puerto Rico is never being called a state in the first place. And “territory” is a whole different thing. While these days I’m apt to take it entirely in its legal sense, as a child when I was thinking about these things differently “territory” would have sounded, if anything, a bit demure, e.g. “Nothing special about us. We’re just ‘territory’.”

  4. DonDueed says

    IIRC, the four Commonwealths are all among the original 13 colonies, and thus they were in existence before the formation of the “United States”, hence before there was any naming convention in place. There was no particular claim of specialness involved.

    The Alito/Thomas position does seem odd. As summarized last night on MSNBC, they hold the view that SCOTUS is required to hear any case brought by one state against another. That sounds like a nightmare. How would the court ever have time for any other cases? Even if such suits were relatively rare, if that policy were adopted any state could completely prevent SCOTUS from functioning by bringing hundreds of suits against other states. Crazy.

  5. says

    the four Commonwealths are all among the original 13 colonies, and thus they were in existence before the formation of the “United States”, hence before there was any naming convention in place. There was no particular claim of specialness involved

    Yeah, but that was more than my 13-year old self knew.

    Even if such suits were relatively rare, if that policy were adopted any state could completely prevent SCOTUS from functioning by bringing hundreds of suits against other states. Crazy.


    Also, too, I’ll note that Cohens is arguing that the Framers couldn’t possibly have intended for the constitution to function in such a way as to permit state governments to destroy the power of the federal government. Yet Thomas (joined here by Alito) is using Cohens to argue that we should give the individual states a power to sabotage the ability of the federal courts to function.

    The irony, not to say dishonestly, is thick.

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