The Supreme Court, in the most important court ruling in the frenzied post-election effort to stop Joe Biden from becoming President, cleared the way Friday evening for the Electoral College to elect him when it meets on Monday.
In three brief but historic sentences, at least five Justices (and maybe more), put an end to Texas’s challenge by declaring that that state had no legal interest in how any other state conducted its election on November 3.
Bland in tone but final n its effect, the order meant that the nearly last-minute Republican effort had collapsed without ritual — no hearing, no filing of formal briefs, no exploration in depth. Whether it would serve to deter any such effort in a future presidential contest was far from clear, given the narrow scope of the order.
With a clear opportunity to say much more, the Court majority chose to follow the minimalist approach that Chief Justice John G. Roberts, Jr., has often said should be the proper mode of conduct for the nation’s highest and most visible legal tribunal.
It was clear that the order had the support of at least five Justices, because that was the minimum number of votes needed to take the action to end the Texas case. The order did not reveal the votes of the majority, and there were no separate statements within that group, so it could have had the support of seven Justices.
It was equally clear that, while the end of the Texas case came on a 9-0 vote, two Justices said in their own, separate paragraph that they would have allowed Texas to file its case, believing that review of such a case was constitutionally mandatory.
But then those two, Justices Samuel A. Alito, Jr., joined by Justice Clarence Thomas, said — somewhat in contradiction — that they would grant Texas nothing else and concluded that they were expressing “no view on any other issue.”
The majority’s brief paragraph had three parts:
First, it said that Texas’s plea to file its challenge (technically, a “bill of complaint”) against four other states where Biden had won the statewide vote was “denied for lack of standing under Article III of the Constitution.”
“Standing” is a doctrine that contains three demands that the Constitution imposes for any lawsuit filed in any federal court: that the suing party show it would be harmed by the action it was challenging, that the sued party (here, the 4 other states) were the cause of that harm, and that the court had the power to remedy that harm. Those demands are incorporated in the Constitution’s phrase that national judicial power is limited to genuine “cases or controversies,” not abstract or theoretical disputes.
Second, that Texas had not shown that it had any interest that a court could recognize “in the manner in which another state conducts its elections.” That is a separate, court-created concept related to “standing” with the same aim, keeping a lawsuit within the scope of a court’s capacity.
And, finally, it said that all other pleas that Texas had included in its legal papers — seeking other court orders to implement its challenge — were dismissed as “moot” (in other words, legally dead).
Everything in that paragraph had to have the support of at least five of these seven members of the Court: the Chief Justice and Justices Amy Coney Barrett, Stephen G. Breyer, Neil M. Gorsuch, Elena Kagan, Brett M. Kavanaugh, and Sonia Sotomayor. It is not necessary for each Justice to actually participate or to be publicly identified as supporting such an order; it takes a minimum of five to take such an action, however.
While Justices Alito and Thomas were prepared to grant Texas the opportunity to file its challenge, they gave it no support on any of its legal theories. They had previously taken the position that, when one state sues another state directly in the Supreme Court, under its so-called “Original” jurisdiction as specified in Article III, a grant is mandatory. (An Original case is one that can only be filed directly in the Supreme Court, with no prior lower court involvement.)
Allowing a state to file such a challenge to other states, of course, does not mean that it would win the case, and it does not even mean that its case would not result in a finding that it had no “standing” to have sued. Thus, the two Justices, by saying they would allow Texas just to file, probably should be understood as making two more votes against Texas.
With this case decided, the Electoral College slate of each state’s winning electors now can meet in each state next Monday to cast their votes. Biden is expected to be elected with 306 votes; it takes at least 270, and President Trump will be defeated, with 232 votes.
Those tallies will be reported to Congress, which will meet in a joint session on January 6 to count the votes. Although some Republicans have threatened to challenge the election of elector slates in at least some of the Biden states, all 50 states had made their own tallies of their statewide results in time to gain a form of immunity to being challenged.
Thus, there appears to be little else that could occur to prevent Biden and his running mate, Kamala Harris, from being inaugurated on January 20. It may be within the realm of possibility, though not of predictability, that President Trump may try something else to prevent that from happening, such a move seems unlikely to succeed.
Friday’s decision by the Court emerged just one day short of 20 years after the Supreme Court had decided the case of Bush v. Gore, which was a dispute over vote totals in only a single state, Florida. Narrow as that prior ruling was, it had the practical effect of securing George W. Bush a victory as President over Al Gore.
Ironically, some statements made by the Court in the opinions issued in that case were relied upon by Texas in challenging votes for Biden. The main theory of the Texas challenge was that state legislatures’ predominant role in deciding how to run presidential elections — something that Bush v. Gore appeared to have embraced — had been undermined by the way mail-in ballots were counted this year in the four states that were targets of the Texas challenge.
Counting Friday’s result in the Supreme Court, President Trump and his allies have now lost in at least 57 court cases, while winning only one, narrowly.
It is understood that two more Republican challenges are being, or about to be filed, in the Supreme Court, but they almost certainly are doomed by the new order issues Friday evening.