Texas v. Pennsylvania: What’s The Deal With That?

And what to make of the mysterious separate “statement” of Justices Alito and Thomas?

Welcome to Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can register to receive updates on this signup page.

If you’re a lawyer or law student, you’ll be bombarded with questions from non-lawyer relatives or friends, at holiday parties or Zoom gatherings, about Texas’s ill-fated effort to swing the 2020 election in favor of President Donald Trump.

You want to sound intelligent in fielding these queries — and I’m here to help. With the benefit of a weekend for reading and reflection, here are my answers to your FAQs about Texas v. Pennsylvania.

What are the basic facts about the case?

A week ago today, on Monday, December 7, the State of Texas filed a Motion for Leave to File a Bill of Complaint in the Supreme Court of the United States (“SCOTUS” or “the Court”). Interestingly enough, the motion was signed by Ken Paxton, the Texas attorney general, and not the Texas solicitor general, Kyle Hawkins, who you’d normally expect to sign. (Some observers have suggested that Hawkins was intentionally trying to keep his distance from the case.)

In Texas v. Pennsylvania, Texas argued that four other states, ones critical to Joe Biden’s victory — Georgia, Michigan, Wisconsin, and Pennsylvania — violated the U.S. Constitution in their administration of the 2020 presidential election. Texas alleged that “[n]on-legislative actors’ purported amendments to States’ duly enacted election laws... [violated] the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.”

What did Texas seek in terms of relief?

A lot — see its Prayer for Relief — but in a nutshell, Texas wanted SCOTUS to (1) declare that the four defendant states violated federal law in their handling of the 2020 election, (2) block the defendants from appointing presidential electors based on the 2020 election results, (3) authorize the defendants to conduct special elections to appoint different presidential electors, and (4) if the defendants have already appointed electors, direct the defendants’ state legislatures to appoint different electors — or no electors at all.

What did President Trump think of this lawsuit?

Not surprisingly, he supported it — as did at least 126 House Republicans and 17 Republican state attorneys general. On Wednesday, December 9, represented by John C. Eastman, former dean and current professor at Chapman University Fowler School of Law, Trump filed a motion to intervene, along with his own complaint making claims mirroring those of Texas.

Did Texas’s lawsuit have any merit?

No. For good explanations of the many legal and factual flaws in Texas’s case, from analysts from across the ideological spectrum, see Jonathan Adler, George T. Conway III, Tom Goldstein, Rick Hasen, Lisa Marshall Manheim, Ilya Somin, and Steve Vladeck, among many others.

Did the Supreme Court think the case had any merit?

No. On Friday, December 11, in a short, unsigned order, the Court denied Texas’s motion “for lack of standing under Article III of the Constitution.” It ruled that “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.” It dismissed all other pending motions as moot.

In layperson terms, what did SCOTUS rule?

“Texas, your lawsuit is all hat, no cattle. You have no business butting your nose into how other states handle their elections. Please go away.”

Did all nine justices participate?

Apparently so, since the Court’s order doesn’t note any recusals. This means that all three of Trump’s high-court appointees — Justice Neil Gorsuch, Justice Brett Kavanaugh, and the recently appointed Justice Amy Coney Barrett — ruled against his desired outcome.

Was the Court unanimous?

“Sort of,” in the words of Rick Hasen. Justice Samuel Alito, joined by Justice Clarence Thomas, issued a separate “statement”:

In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U.S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). 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.

What the heck does that mean?

Good question; Justice Alito’s somewhat cryptic statement spurred lots of discussion and debate. Those on the left argued that it meant that even the two most conservatives justices viewed Texas’s case as meritless, while those on the right viewed it as vindication.

Let’s dive into the debate — because it’s super-interesting, at least to Supreme Court nerds and #appellatetwitter types, and because it lets us talk about “original jurisdiction,” the technical legal term after which this august publication is named.

What exactly is “original jurisdiction”?

Article III, section 2 of the U.S. Constitution provides as follows:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

There’s an intriguing disagreement among the justices about how to handle cases that invoke the Court’s original jurisdiction.

Justices Thomas and Alito, widely viewed as the Court’s two most conservative justices (although I don’t think this issue has much of an ideological valence), believe that the Court lacks the discretion to refuse to hear cases that fall within its original jurisdiction. In other words, they believe SCOTUS must entertain such cases, even if it ultimately rejects them on the merits.

Longstanding Court precedents — and, it seems, the other seven justices — take a different view. Under this view, the Court has the discretion to deny such cases a hearing — in procedural terms, to deny the motion for leave to file a bill of complaint. (Under the Court’s current practice, by the way, granting the motion would have required five votes, not the four required to grant a writ of certiorari to hear a case coming from a lower court.)

The Court’s jurisprudence on original jurisdiction is why Texas had to bring its case to SCOTUS by moving for “leave to file a bill of complaint.” But in the brief in support of its motion, Texas did raise a challenge to the Court’s original jurisdiction jurisprudence, in case other justices were open to the Thomas/Alito view: “Plaintiff State respectfully submits that the Court’s review is not discretionary,” and “reconsideration [of the Court’s doctrine here] would be warranted to the extent that the Court does not elect to hear this matter in its discretion.”

Might Justices Alito and Thomas have ruled in Texas’s favor if the motion to file had been granted, i.e., if the Court had considered the case on the merits?

Probably not, but it’s not perfectly clear. Let’s look back at their language (emphasis added):

“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.”

Howard Bashman has an excellent analysis trying to parse this less than pellucid passage. He writes:

[T]here are two possible ways to understand Alito’s statement. (1) Perhaps he agrees with the Court’s disposition of the case without reaching the merits but first would have granted Texas’ motion for leave to file its bill of complaint. (2) Or, in the alternative, he would grant Texas’ motion for leave to file its bill of complaint, he would deny some unspecified amount of or perhaps all “other relief,” and he expresses no view on any other issue.

Howard continues:

That Alito’s writing appears under the title “Statement” indicates that he agrees with the result that the Court reached in denying all relief to Texas. For example, when a Justice issues a statement respecting the denial of certiorari, he or she is not disagreeing with the denial of review in this particular case but rather is observing that some other case presenting the issue might be more deserving of review. The title appended to Alito’s separate writing... is the strongest indication to me that the decision to deny all relief was unanimous. And Alito’s assertion that he would deny “other relief” can be read to mean ANY and ALL other relief, and his assertion that he expresses “no view on an other issue” most likely means that he agrees with the dismissal for lack of standing, which is not an adjudication on the merits.

I tend to agree, although I’m not 100 percent positive. The statement could instead mean that, at the time the statement was issued, Justice Alito wouldn’t grant relief beyond granting leave to file — e.g., no immediate injunction blocking the defendant states from appointing electors — and his “express[ion] of no view on any other issue” means that he has nothing else to say right now because he wanted to consider Texas’s case on its merits. As for the title, it could be a “statement” rather than a “dissent” because Justice Alito, although he would like to revisit the original-jurisdiction precedents, agrees that they are the law and consents to their application here (even if, were he writing on a blank slate, he’d go the other way).

Had Justice Alito wanted to convey his agreement with the majority that Texas lacked standing, he could instead have written something like this, as suggested by Howard (again, emphasis added):

“I would therefore grant the motion to file the bill of complaint but deny all other relief due to lack of standing, thereby expressing no view on the merits of this matter.”

That’s so much clearer, isn’t it?

Here is Howard’s final point:

Before concluding, I acknowledge that some have opined that the lack of clarity in Alito’s separate statement may have been intentional rather than accidental. To be sure, he certainly had adequate time to decide what to say, since Texas had filed its motion for leave to file a bill of complaint on Monday and the Court’s denial issued on Friday.

This happens to be my view — that Justice Alito’s ambiguity was intentional. Whether one agrees or disagrees with his jurisprudence — and given his staunch conservatism, many on the left believe his views are “not true, not true” — Justice Alito is no dummy. And he’s generally a very clear (even if not terribly stylish) writer.

My suspicion, then, is that Justice Alito wanted to leave enough ambiguity here to make everyone happy. To folks (like Howard) who want to believe he agreed that Texas lacked standing, there’s good language: “would not grant other relief.” But to folks who want to believe he was open to hearing out Texas and Trump, there’s good language too: “I express no view on any other issue” (e.g., Texas’s standing or lack thereof).

For what it’s worth (and maybe it’s not worth much), President Trump seized on Justice Alito’s ambiguity to claim that at least two members of SCOTUS were open to Texas’s claims. He tweeted:

Trump also retweeted Todd Starnes expressing thanks to the two justices:

What’s the bottom line?

President Trump’s quixotic quest to block President-elect Joe Biden from assuming the presidency is over. As I write this, electors are meeting around the country to select Joe Biden as the 46th president of the United States.

Like the lower courts, the Supreme Court has demonstrated, amply and admirably, that it isn’t the pawn of the president or partisan politics. The justices decide cases based on the facts and the law — even if doing so means angering the president who appointed a third of their number.

So congratulations to President-elect Joe Biden, Vice President-elect Kamala Harris, and their incoming administration. And congratulations to the Supreme Court of the United States, for demonstrating its integrity and independence once again.

Thanks for reading Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction on its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.