Tuesday, December 8, 2020

UPDATED: SCOTUS Rejects Kelly's PA Suit Without Comment

Shipwreckedcrew has a good article commenting on how inadequate the PA response was: Pennsylvania's Response Ordered by Justice Alito Reflects Fear of the Defendants About What Might Be Coming. The article was written, of course, before the SCOTUS dropped that particular ball.

Here's how silly he finds the legal arguments, in a nutshell:

The idea that the Supreme Court should shrink from making difficult choices in reaching a decision in a case before it due to the claim by Pennsylvania that no court has ever done this before is moronic.  Yes, it’s never been done before.

Also yes — no State has ever conducted an election in a manner that violated the State’s own Constitution.

OTOH, he closes the article this way--and it reflects what probably happened:

The one issue raised by the Response which I think might resonate with the Court is that any decision which inserts the Court into the determination of Pennsylvania’s Electors runs contrary to “separation of powers” principles which place the responsibility for resolving disputes over the validity of named “Electors” with Congress. ...

This raises the point that I made in my article yesterday — how is the Court prepared to respond if it were to grant the injunction against the Pennsylvania state defendants, and on January 6, 2021, the Joint Session of Congress nevertheless counts the slate of Electors already certified and sent by the Pennsylvania Governor for Joe Biden?

There is no functional method I can envision where the Court would attempt to place itself deeper in this controversy between January 6 and January 21 if the Congress was to certify the vote of the Electoral College which included 20 Electoral votes from Pennsylvania in favor of Joe Biden. ... I think there is no question that the Democrats, in their overriding desire to be rid of Donald Trump and deny him a second term, will disregard the damage they would do to the Court by ignoring any Order and moving forward. ...

Damage to the SCOTUS? How about damage to the Constitution and the nation?

What this means is that the SCOTUS will be de facto acquiescing to a federal election system that it tacitly acknowledges is broken beyond repair. In other words, to a broken US Constitution.

That is, unless the SCOTUS tries to address this mess through the other cases.

UPDATE: Commenter aNanyMouse quotes SWC--after the news came out--saying:

"if the Court was truly seeking to “wash its hands” of all election controversies involving Pennsylvania, it could have said so today, in statements accompanying this Order. By playing “coy” in giving no reason today, it did nothing to “tip its hand” about the sentiment inside the Court, on the actions of the Pennsylvania Supreme Court and state officials, across a host of issues. 

That's a fair take, it seems to me. It also tells the many commenters who are asking, What does it MEAN? about all that we can say: They don't want to tip their hand. Most of the views expressed in the comments remain possible. It does seem that if the SCOTUS had really intended to "wash their hands" of all the election controversies, not only COULD they have said so, but really in fairness to all concerned parties--which would embrace the entire country--they SHOULD have said so.

My view, as already expressed, is that this is not simply a legal matter--it's a political matter in the big picture meaning of the word, involving all three Constitutional branches of government, co-equal and intended to balance one another. I believe that at least five of the justices truly want to reach a balanced resolution and are appalled at what they know has transpired. They know that our constitutional order is up for grabs. But as a constiutional institution seeking to preserve that constitutional order they can't simply go on gut convictions--as commenter EZ indicated, they're searching for the right way to come to grips with this crisis that is in harmony with the order they want to preserve. Is the Texas case the way forward? Maybe. Is there something else that we don't know about? Maybe.

It's not a satisfactory position for us to be in.


  1. Two thoughts:

    1) injuctive relief is only granted if TWO conditions are met: a) irreparable harm likely w/o injunction, and b) petitioner likely to prevail on merits.

    The second condition (b) is where petitioners may have had a problem; if no evidentiary hearing has taken place in the case, there is no basis on which SCOTUS could conclude petitioner is likely to prevail on merit. Ergo, SCOTUS cannot issue the injunction sought.

    2) could it be SCOTUS thinks TX case is a better vehicle to address the election imbroglio, and thus doesn't want the PA case cluttering up the calendar when they plan to do heavy lifting via the TX case?

    1. Also, the PA case may've been dismissed, because this TX case gives SCOTUS the advantage of being able to *receive* evidence, as opposed to only a *record of a lower* trial (appellate jurisdiction).
      Original jurisdiction applies to the TX case, and means SCOTUS can make findings of fact.

    2. If original jurisdiction applies to the TX case, and it means SCOTUS can make findings of fact (Discovery!), that would be the *perfect* vehicle, for a Grand Ruling befitting the circumstances.
      Esp. w/ involvement of AGs from many states (e.g. AL & LA).
      What if Alito moved the PA case deadline up, once he heard that the TX case was ready to be filed??

    3. aNannyMouse,
      My thought exactly.
      ZeroHedge reported the Taxes thing early today and undated the article with the PA decision.
      My first though was:
      The court has no reason (seems me) to hear the myriad of case developing. The Texas decision should over ride all the others.

    4. Once govs in GA, MI, PA, & WI see that Discoveries will be sent their way, they'll likely crap in their pants, esp. if they fear that a DJT Admin. will be able to pursue leads emerging from these probes.
      Such Discoveries can find all sorts of unrelated but juicy dirt.

  2. So the court has now endorsed "the end justifies the means" for all future elections. Pennsylvania did not follow their own state constitution and the court has no issue with how that impacts the remainder of the country. I understand that they do not want to insert themselves in the middle of this but they insured this outcome when they did not deal with this before the election. Justice Roberts tried to avoid politicizing the court and by doing that has made sure that either way, they appear politicized.

    1. Yes it has. Trump must be destroyed and his like never to be allowed to rise again. Spartacus

  3. Well there goes the country. The deep state will never lose another election

  4. I would like to think that they only rejected the PA suit because the TX one gives them a better vehicle. Otherwise it means that we couldn't even get 4 votes for protecting the republic.

    1. My thoughts exactly. What would be the point of taking the PA case with the Texas case in the pipeline?

    2. I don't think so. This is us chasing the next shiny thing. Grasping at straws. What has to happen is that the political side of the election has to become so overwhelming convinced/angry at the fraud it gives the Supreme Court a reason to act. So keep the pressure on the elected leaders and be sure to let everyone included the deluded ones that this election was fraudulent. Keep repeating each instance of fraud and make the other side defend it. - Spartacus

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  6. No dissenting opinions. Maybe because there wasn’t time but there’s been a week to write a dissent (unless there was a last minute vote switch). But it is also “just” a denial of the injunction. The case is still potentially “alive.”

    One thing that has been bothering me about this case is that it is arguably meaningless unless something happens to toss out the electoral votes of at least one other state. Which makes me wonder if the TX lawsuit was a game changer in another way — why waste political capital and create turmoil over a case that might not change anything when there is a better vehicle for addressing the issue that can truly make a difference. Also, in the TX case there is no issue of laches being a state law issue that is unreviewable federally. And you never know the dynamics — maybe Roberts indicated he’d be more likely to be a 6th vote in favor of TX and persuaded the conservative bloc to hold off for that case.

    I just can’t believe that Alito would let this go without a dissent unless there is something more coming down the pike. Andy S.

  7. SWC has posted posted his take on the statement, with the following guess:
    "if the Court was truly seeking to “wash its hands” of all election controversies involving Pennsylvania, it could have said so today, in statements accompanying this Order.
    By playing “coy” in giving no reason today, it did nothing to “tip its hand” about the sentiment inside the Court, on the actions of the Pennsylvania Supreme Court and state officials, across a host of issues.
    It still has not addressed the extension of the “received by” deadline set forth in the election statute, which remains pending before it.
    The request for review on that Petition could be easily declined, although several Justices have expressed a desire to address the issue...."

  8. Aren't the issue raised by the Texas case essentially what the important constitutional issues are in all the states it filed suit against, PA included? I would think that the SC would rule, one way or the other, on that case rather than address one state at a time. The Texas suit would potentially affect the outcome of the election while PA alone would not.

    I don't assume this means a ruling in our favor at the Supreme Court in the Texas case. But maybe they just preferred the Texas case as a way to resolve all controversies at once.

  9. So, since the SCOTUS rejected this one, are taking the Texas case? Is it possible they rejected the Kelly case because they want to rule on the Texas case?

    1. Dave, in a word, Yes. I've updated to express that.

  10. I grow more and more exhausted with this government every day. In running out of nice ways to say that as well.

  11. "But you’ll see a lot of big things happening over the next couple of days."

    I think I can speak for roughly 73 million Americans when I say, "Now would be a good time to reveal what you've been holding back." I sure hope that the Texas lawsuit wasn't what Trump was alluding to. It might be the last best hope, but it's still pretty high risk.

  12. The other case brought by Texas and joined by Louisiana is based on similar grounds isn't it? The unconstitutional change of rules right before the election.

    If what is quoted above from SWC of redstate is indeed the reason SCOTUS tossed that case, then it likely will toss this one as well.

    In fact, this means there is no civil course of action to remedy a stolen election in a state, as long as all branches of the state are in on it.

    Is the Constitution a death wish document?

  13. It's getting harder and harder to find a silver lining. Right now, I have no confidence in the Texas case. I guess SWC's concerns, in the earlier posting, about the defendants (PA) having something to worry about were misplaced. It was a lock.

  14. Just saw this posted on SCOTUS site: Response to the motion for leave to file a bill of complaint and to the motion for a preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay requested, due Thursday, December 10, by 3 pm.

  15. OT, but related.

    Firearms manufacturers are now carrying over $5 billion of backorders. Try to find ammo. Try to find powder or bullets or, especially, primers for reloading. Tactical, self defense and precision shooting schools and organizations are booming.

    Over 8 million new gun owners since the riots, abd 40+% are women.

    I sure hope I am wrong, but if this fraudulent election stands, it sure seems we are a flashpoint away from this thing getting bloody.


  16. Mark, speculate about the role of the executive branch in carrying out a SCOTUS ruling? It would not then simply be the Court out on its own, would it? Is there a path for Barr to redeem himself if the court rules in Tx’s favor?
    Honest question. I don’t know.

  17. Can someone explain the differenced between the case where SCOTUS voted 4-4 and this case, where the vote was 9-0?

    1. To answer my own question:

      "This is what Jenna Ellis said on her Twitter:

      "The Supreme Court only denied emergency injunctive relief. In the order, it did NOT deny cert.Mike Kelly's suit is still pending before the U.S. Supreme Court."

    2. Correct, but time is important here.

    3. Fox (Hemmer) ignored the part about "denied *emergency injunctive* relief", and spun it as being the end for Kelly's bid.

  18. Another factor in favor of SCOTUS choosing the TX case over others:

    Another thing that is attractive about the TX case is that SCOTUS would be the trial court; that means no time wasted with remand to lower courts that can run out the clock (see: judge Sullivan, Flynn case.) SCOTUS would hear the arguments, weigh them, and make a determination, and rule on how it thinks the problem should be resolved. Much cleaner than an appellate case. And it avoids the issue of whether or not fraud even took place.

    If SCOTUS wants to resolve the issue without getting dragged into a messing evidentiary hairball about ballot/election fraud, the TX case -- and its pure Constitutional issues -- is likely much more attractive in comparison.