Friday evening the United States Supreme Court decided to not take the Texas lawsuit against four states over their application of presidential election law.  The Court only mustered two justices in favor of taking the case:  Samuel Alito and Clarence Thomas.  The argument against hearing the case was that Texas lacked standing to sue Michigan, Georgia, Wisconsin, and Pennsylvania.  Wow!

In a podcast titled “Is Secession Upon Us?” Ben Shapiro argued against the Supreme Court taking the Texas lawsuit.  He reasoned that under principles of federalism it would threaten our union if the sovereign states could dictate the laws of other states without resulting direct damages.  This goes to one of the three principles of legal standing.  His concern considers that in the future, the Court under a left-leaning majority would use this concept to attack more conservative states and their laws.  His thinking is reasonable and likely figured into a rejection of the case by the seven other justices.  Yet, I doubt that this was the essential point in this case.

If we examine Marbury v. Madison (1803), Chief Justice John Marshall set the principle of judicial review of congressional laws.  He determined that Section 13 of the Judiciary Act of 1789 violated Article III of the Constitution by illegally enlarging the role of the Supreme Court from an appellate jurisdiction to one of original jurisdiction.  His reasoning was excellent.  But one must also consider the political implications.  President Thomas Jefferson, an ardent opponent of last-minute appointments made by the John Adams administration, would likely refuse to obey a writ of mandamus to sit Marbury as a judge, rendering the Court impotent.  He reaffirmed the ideal suggested by Alexander Hamilton in Federalist No. 78 of judicial review as a way of avoiding a political risk and thereby strengthened the Court’s power.  In this case, standing was an issue because Marbury brought the lawsuit to the wrong court.

I believed that Justice Roberts would only desire a unanimous decision should the Court take the case.  Interestingly the three Trump appointees, demonstrating independence, refused the case.  Perhaps they saw merit in the Shapiro argument.  Possibly they saw their ability to render opinions in the future being questioned by intervening in the presidential election on behalf of their benefactor.  So, is there any standing in this case?

A simple reading of Article III Section 2 makes the Supreme Court the original jurisdiction in all cases of state-to-state actions.  It allows original jurisdiction between citizens of different states.  This is the root of the lawsuit claiming damages from illegally cast votes in a presidential election.  There is no requirement to take any case and herein lies the real issue. 

The argument fails to mention any corruption or irregularities that could be remedied by the Court.  When a court chooses to avoid a hearing, it can do so through the principle of standing.  Standing, according to the free legal dictionary by Farlex: "is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute."

The three liberals, Sonia Sotomayor, Elena Kagin, and Stephen Breyer would fear allowing the conservative majority any latitude in this case.  In such a case it usually takes 5 justices to hear the case.

The majority chose to avoid this case because it would be politically dangerous. 

What is the purpose of the Supreme Court?  It was intended to adjudicate the essential protections of our Constitution.  A fair and honest election must be a part of this protection.  We are a republic and select electors (that ultimately choose the president), who are apportioned based upon the population of each state and jurisdiction.  Failure to follow the Constitutional prescription under Article II section 1 that grants the legislatures the sole power to choose electors renders this clause useless and must be a permanent harm to citizens of different states.  Failure to hear this case is an abrogation of the Court’s role to protect our institutions. 

As to Shapiro’s concern that expanding federal power to examine the sovereignty of the states misses a reliable fact:  In the future, the liberals will do so if it serves their interests, as they have expanded federal power in the past.  They do not need any precedent as they create their own.  After all, they ignore restriction in the Constitution when it is convenient.  They will use any means to accomplish a desired result.

The Court did not have to dismiss the electors in the four states.  They could have ruled that the procedures used to change election law in the four states was in violation of the clear wording in the Constitution.   Thereby, the Court would be reaffirming that provision of the Constitution.  They could have demanded evidence of the harm.  If they found insufficient evidence to change the election in each state, they could then leave the result.  Should evidence be sufficient (and this is a high hurdle) to change the result of the election, they could apply the Court’s 1892 ruling in McPherson v. Blacker to have the legislature make the final decision via electors.  Then they restore the political responsibility of state’s elected officials, which the most important aspect of federalism as a counter to expanded national power. 

As to harm, it is not hard to see it.  Any illegal vote damages those who vote legally by distorting the outcome.  This occurs in the presidential election and in the election of representatives to congress, where few votes might separate winners and losers (as in NY-22 in 2020).  The Court can see harm when it chooses to do so since states’ citizens are not third parties.

However, on Friday, the Court’s majority demonstrated a lack of fortitude.  For a divided and skeptical citizenry this is disappointing.  An overwhelming majority of Trump’s voters (and a large minority of Biden’s voters) feel this was a dishonest election.  A judicial review would provide some comfort to those citizens that perceive real harm by the elitist establishment class.  Failure to recognize this feeling and examine it increases their discontent and isolation. Now the battle cry of “stop the steal” will reverberate for years.  Perhaps there is fear that evidence of irregularities would demonstrate the real corruption of the establishment and swamp -- the thirst for power.  If this was a consideration, it is disgraceful!

Image credit: Picryl public domain, image orientation modified.