Margot Cleveland Goes Yard On The SCOTUS

This morning Margot Cleveland combines a close analysis of the SCOTUS anti-order in the Texas Election Hoax case with a bit of Big Picture perspective. The entire article is worth reading, but as usual I'll excerpt some particularly telling passages:

The Supreme Court’s Rejection Of Texas’s Election Lawsuit Failed The Constitution

It is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election.

Cleveland's basic critique of the brief anti-order is that it amounted to a straw man argument--which is why I refer to it as an "anti-order." Most of the justices are intelligent people, so we are entitled to presume that they read and understood what Texas had to say in its complaint and supporting brief. That the SCOTUS' anti-order instead chose to present a caricature of what Texas was saying--what Cleveland refers to as their "framing" of the issue"--speaks to the real motivation behind the anti-order: to sidestep (my word) the tough issues presented by an Election Hoax, especially one of this magnitude.

In what I take to be the meat of Cleveland's argument, she first presents the key to the anti-order:

In Friday’s order, the Supreme Court, without elaboration, held that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” and thus concluded the Lone Star State lacked Article III standing.

Since Cleveland is too polite to say this, I'll say it: This is a completely dishonest characterization of Texas' complaint--it's a caricature of it. Of course Texas understood that the US Constitution--in the Elector Clause--allows each State to to choose "the manner in which another State conducts its elections”, nor did Texas pretend to have a right to meddle in other State's affairs in that regard. The problem with this characterization is that the US Constitution--in granting this power to the States--does also specify which State institutions will decide that manner of holding its elections: That authority is specifically granted to the legislatures the authority to decide how Presidential Electors are to be selected. Not to the governor or lower State officials, not to State courts. One of Texas' key claims was precisely that the States named in its suit had violated the US Constitution because State actors other than the legislatures had intervened in this process in key ways. Texas was not objecting to the "manner of conducting elections" as laid down by the State legislatures--in accordance with the Constitutional mandate--but to the unconstitutional interference of actors other than those specified in the Constitution. The SCOTUS anti-order knowingly mischaracterized this issue, muddying the waters intentionally--in order to lend a veneer of plausibility to their bare assertion that Texas lacked standing. To have written a full opinion on the substance of Texas' claim would have exposed the dishonesty and the true motives, so the Roberts majority used the anti-order summary denial of leave to file a complaint as a subterfuge to conceal their true motives (the Alito/Thomas "Statement", by referring to "other issue[s]" hints at what's going on).

Now, with that in mind, read carefully what Cleveland writes next--you'll see that it's basically what I've just written. When she says the SCOTUS was "correct" that Texas lacked a "judicially cognizable interest" what she's actually saying is this: The SCOTUS was "correct" only if you accept their dishonest characterization of Texas' "true complaint." The SCOTUS has presented the nation with a straw man, a caricature of what was truly at issue--not the manner in which States conduct elections, but the unconstitutional interference of non-legislative actors, in direct violation of the Elector Clause:

 

The justices were correct that Texas lacks an “judicially cognizable interest in the manner in which another State conducts its elections,” but it was the framing of the issue that made the answer self-evident: The court’s abbreviated decision failed to address Texas’s true complaint—that Pennsylvania, Michigan, Wisconsin, and Georgia violated the Equal Protection, Due Process, and Elector’s Clauses of the Constitution, and in doing so harmed Texas as a state.

Of course, because the justices had Texas’s bill of complaint, by declining to exercise jurisdiction over the case, the seven justices all concluded that the facts Texas alleged were insufficient to confer standing. (The same cannot be said for Alito and Thomas, who expressed no opinion on standing, the court’s framing of the issue, or the merits of Texas’s claims.)

But by failing to mention Texas’s constitutional claims, and by not providing any reasoning for its decision—omissions likely needed for the court to maintain its near-unanimous agreement—the Supreme Court created the appearance that it does not care about constitutional violations. When the question of standing is considered against Texas’s allegations of violations of the Elector’s Clause, it is hard to believe the court does. Or, rather, given their refusal to address Texas’s Elector’s Clause claim, it is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election.

Here, I understand where Cleveland is coming from, but I think there's a more precise way to describe what the SCOTUS was up to, with their straw man anti-order. Certainly they didn't want to create "the appearance that it does not care about constitutional violations." That wasn't their intention at all. What they wanted to do was to pull the wool over the nation's eyes by creating the appearance--if that were possible--that there simply were no Constitutional issues presented by Texas. In that, as Cleveland notes, the SCOTUS' anti-order was a miserable failure--they fooled no one. The nation--both Left and Right--knows that they backed down from their sworn duty.

From there Cleveland focus' on the nature of the "true" issues that the SCOTUS inadroitly attempted to sidestep:

Texas’s Elector’s Clause claim, however, required more: It required the court to accept the complaint and address, in detail, the merits of Texas’s claim, because Texas was not merely challenging the manner of the other states’ elections.

...

Texas’s complaint and briefs then detailed the various extra-legislative modification or violations of the legislatively established election mandates. ...

And then, very succinctly, Cleveland shifts to the Big Picture. Texas' complaint wasn't, in the "true" sense, simply about a "technical" violation of the Elector Clause. It was about the compact that all the States entered into when they entered the Union. In Constitutional terms it doesn't get much more Big Picture than that:

 

Why was that not enough for the Supreme Court? What was lacking? The justices said standing—“a judicially cognizable interest”—but how can the state of Texas not have a judicially cognizable interest in her sister states living up to the compact they entered when they entered the Union?

Texas attempted in its briefs to crystalize the harm ... But a simpler and stronger argument came in a brief submitted by would-be amicus curiae Citizen’s United:

 

When one state allows the Manner in which Presidential Electors be chosen to be determined by anyone other than the state legislature, that state acts in breach of the presuppositions on which the Union is based. Each state is not isolated from the rest—rather, all states are interdependent. Our nation’s operational principle is E pluribus unum. Each state has a duty to other states to abide by this and other reciprocal obligations built into Constitution. While defendant states may view this suit as an infringement of its sovereignty, it is not, as the defendant states surrendered their sovereignty when they agreed to abide by Article II, § 1. Each state depends on other states to adhere to minimum constitutional standards in areas where it ceded its sovereignty to the union—and if those standards are not met, then the responsibility to enforce those standards falls to this Court.

 

On Friday, the Supreme Court voted not to enforce those standards.

...

There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.

Or to put it more strongly, by voting not to enforce the very standards on which our Union is based, the SCOTUS delegitimized itself as a Constitutional institution. Once you've done that, how do you get your legitimacy back? The SCOTUS has been wrong before--usually by overreaching--but this time it backed down from upholding the most basic principles of our constitutional order. They have forfeited any presumption of integrity or trust.