Saturday, December 12, 2020

The Meaning Of The Alito/Thomas "Statement"

Commenter Cassander has complained that Justices Alito and Thomas were "unclear" in their "statement" (their descriptive) regarding Texas' attempt to bring a case against four named States before the SCOTUS. Commenter Andy S. maintains that Alito's and Thomas' "statement" is not a "dissent".

To take the latter first, the "statement" of Alito and Thomas is simply a dissent by another name. The two justices plainly state that they disagree with the result--denial of "leave to file a bill of complaint". They would have granted leave to file the complaint. In expressing this disagreement Alito cites Thomas' dissent in a case from February, 2020, for the principle on which their disagreement stands: The SCOTUS has no discretion to decline suits of original jurisdiction, such as the Texas case.

That's a dissent--labeled as a "statement."

As to the carefully worded statement of what they would have done, Alito and Thomas simply state that they would have allowed leave to Texas to file the complaint. However, behind that seemingly simple statement there would have been clearly foreseeable legal consequences. What that concretely would have meant is that once that leave was granted there would have been a series of motions, beginning with a motion to dismiss the complaint for failure to comply with requirements of the Federal Rules of Civil Procedure, specifically, Rule 8. That would have required the SCOTUS to provide specific and expanded reasoning for dismissing Texas' complaint--something I suspect that the other justices did not want to do.

Here's what I mean. It's necessary to understand that modern complaints need only be very short statements, consisting of a bare minimum of specified elements:

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

You will note that there is NO reference to evidence or proof. That all comes later. Thus, the first motion for the defense would have claimed that 

1) the SCOTUS had no jurisdiction, and/or that

2) Texas was not entitled to relief.

If the SCOTUS had accepted the Texas complaint under the Constitutional mandate of Origial Jurisdiction (see Thomas' dissent, below), they would have then been required to explain why Texas was not entitled to relief. If they could not explain that, the case would have proceeded to evidentiary matters.

The SCOTUS order in the Texas case attempts to sidestep all that by simply denying Texas leave to file a complaint at all.  The reason for that tactic is clear: to have allowed the complaint to be filed would have put the SCOTUS between a rock and a hard place, in Constitutional terms. However, the SCOTUS doesn't deny that they have original jurisdiction over disputes between States, nor does it actually dare assert that entertaining such suits is discretionary with the SCOTUS--a very debatable proposition. Rather, it simply denies leave to file this particular complaint because--in their conclusory statement--the manner in which another State conducts its elections is none of Texas' business--"Texas has not demonstrated a judicially cognizable interest" is simply a barely polite legal way of saying: None of your business. No attempt is made to explain that rationale. In actual fact, Texas had articulated a clear Constitutional interest: violation of the election clause in Article II, Section 1, which harmed Texas' interests in having its election fairly weighted in the electoral college.

As to any lack of clarity, the clarity can be gained from the case reference in the Alito/Thomas statement, which cites the earlier case between Arizona and California. (I've included Thomas' dissent in that case in full, below.) Note that in this earlier case the SCOTUS majority forthrightly claimed that they had discretion to refuse to accept cases of original jurisdiction between States--just because they were busy with other things. That is a claim that the majority doesn't dare to make in the Texas case. In the earlier case, with no election disputes of such magnitude on the horizon, Thomas argues succinctly that the SCOTUS, in fact, possesses no such discretion to reject suits between States, just as the Alito/Thomas Statement also asserts.  Notice, too, that Alito joins with Thomas in the dissent. 

Cite as: 589 U. S. ____ (2020) 1

THOMAS, J., dissenting




No. 150, Orig. Decided February 24, 2020 

JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting from denial of motion for leave to file complaint. Today the Court denies Arizona leave to file a complaint against California. Although we have discretion to decline review in other kinds of cases, see 28 U. S. C. §§1254(1), 1257(a), we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases ... in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable. 

The Court has provided scant justification for reading “shall” to mean “may.” It has invoked its “increasing duties with the appellate docket,” Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its “structur[e] . . . as an appellate tribunal,” Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution’s text to justify our discretionary approach.

Although I have applied this Court’s precedents in the past, see Wyoming v. Oklahoma, 502 U. S. 437, 474, n. (1992) (dissenting opinion), I have since come to question those decisions, see Nebraska, supra, at ___ (dissenting opinion) (slip op., at 3). Arizona invites us to reconsider our discretionary approach, and I would do so. I respectfully dissent from the denial of leave to file a complaint. 

All of that, I submit, may be taken as read into the very brief Statement or Dissent by Alito and Thomas--read in by the case citation. Brief as it is, it's also a scathing indictment of what the SCOTUS has become.


  1. Makes one wonder if Trump SCOTUS appointees are, while R's, also Establishment NeverTrumpers and this is their way of getting rid of Trump.

    1. @Anonymous

      I have always had this worry about Kavanaugh, whose entire self-image is built around Yale, Yale Law School, and the Elite Establishment. I have been hoping his treatment at the hands of the Liberal Mob during his hearings might have cured him of this but...Wait until he finds out that he has no friends left.

      We'll see about Gorsuch and Barrett, but yesterday was certainly a wake up call.

    2. Cassander - that is the whole problem with the “Ivy League” cabal; there’s an expected mode of thought inherent & - even if they are “R”’s, there is a “higher loyalty” shall we say? They don’t want to attend university soirĂ©es & be persona non grata.

      Ted Cruz is a true anomaly; he attended the “Ivy League” & didn’t come away with any of the stain.

  2. Thanks for unpacking the 'statement', Mark. Seriously.

    But the Justices of this Supreme Court do us a serious injustice when they do not explain themselves.

    FWIW, I find myself still hoping (against hope) that the standing issue can be overcome and the Supreme Court will be forced to deal with the momentous (an understatement?) issues raised in the Texas complaint.

    1. We have a SCOTUS where the likes of Gorsuch and Roberts are willing to legislate re "transgenderism" but claim that how presidential elections are run are no concern of theirs. This bears no resemblance to the constitutional order envisioned by the Founding Fathers.

    2. Exactly. They have all the time in the world to ponder the intricacies of human sexuality, which is none of their damn business, it never was, and no time at all to address a Constitutional crisis.

      The three Trump appointees have exposed their inner coward. A pox on them all.

    3. @ titan

      Indeed, where are the Republicans who advised Trump on his much ballyhooed list of potential SCOTUS picks? What does the repeated and dastardly betrayal by these supposedly solid conservative, originalist justices tell us about how thoroughly and cruelly normal Americans have been fooled by the GOP Incorporated?

  3. ...and since Alito and Thomas could not bring a majority over to their point of view, Roberts (presumably) controlled the method and wording of announcing the decision and...what you see is what you get.

    1. I guess we have to clearly define the meaning of "originalist" next time a SC opening occurs.

  4. SCOTUS had an obligation to explain and JUSTIFY their decision. After all, they were denying relief to half of the electorate! (More than half when you remove fraudulent ballots.) How odd that they declined to do so, given Chief Justice Roberts' endless clucking about the image and legitimacy of the court! Because SCOTUS refused to explain themselves, many Americans believe they are compromised. I don't share that opinion, but they certainly owe us a detailed explanation laying outtheir reasoning and the legal basis for their decision.

    1. Was the summer of violence from BLM/Antifa part of the plan to defeat Pres. Trump at all costs? People have become terrified of going against the Democrats, it seems to me, lest they suffer severe consequences. How many don't dare to come forward with testimony about the lawlessness and cheating they witnessed in these counting rooms? Both the steal and the riots were carefully planned and executed. Is it unreasonable to suggest that the violence was meant to intimidate us and condition us to fear challenging the lawless Left? I don't think so!

  5. SCOTUS became what it has become when Bork was destroyed. Since then it's been a long, slow bearish decline--albeit with some strong bear market rallies (which, it turns out, were great opportunities for shorting the US Constitution). As with trading the markets, one is wise to shun attempting to pick a bottom. Given the Dems' stated objectives, there may not be a bottom without either a split or civil war. Much as we might prefer to divorce from those who are no longer our countrymen (TWANLOC), imagine how much easier it would be for China to destroy us when one half would gladly provide them a beach head on our continent.

    Am I overwrought? No, I'm just too old. I don't think this can be fixed in my lifetime and I'm angry as hell that my GD Baby Boomer generation is going to leave this mess to my children and grandchildren.

  6. Word definition games, "shall" means "will" in one case but conveniently means "may" in another.

    Just wait till they get to the "shall not" in a few of the other constitutionally outdated and therefore meaningless amendments.

    Honestly if Alto and Thomas disagree so strongly they have avenues of expressing that quite loudly if they wish to. I think this was your (Mark's) sentiment yesterday in saying they should just resign in rebuke. I doubt however we will see that happen in any means as taking a stand is simply unpopular.


    Forgive me for not reading between the lines in standing up for Alto or Thomas. They are big boys and are very capable of penning a very clear Whiskey, Tango, Foxtrot us hillbillies can understand.

    Times like these call for big boys to get the jar off the mantel, refit their manly bits, pull up their panties and vomit rage.

    Something conservatives simply refuse to learn to do.

  7. Trump has unmasked the lack of power / credibility / bias / courage of SCOTUS and the US court system.

    Amazing how many institutions / people Trump has done this too.

    And I’m sure there are more to follow.

    What will Trump do while he’s still POTUS?

    And post POTUS, if a miracle does not occur, what impact will Trump have?

    Trump is causing so many changes by destroying the masks of hypocrisy our institutions have worn to keep their status.

    1. I believe he intuits a lack of honor among the particular group and simply calls on them to act honorably or to honor their own rules traditions or mires or standards and when they fail to do this because the honor has been drained out of them and it is all calculated posturing, we see their actions and justifications for what they are.

    2. What was, is no more:

  8. Foreshadowing this train of thought back in early 2020 would show that Kavanaugh and Gorsuch were already on opposites sides of Thomas and Alito at that time. Hhhhmmm....

  9. Standing, in my view, is used to weed out cases a court does not want to deal with. It also appears to be a doctrine developed in 20th Century.

    Ironically, regarding state v state, the Constitution and US Code is very unambiguous with a legal commandment “shall.” That commandment inherently means a state has standing.

    Article III Section 2

    “ The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,


    to controversies to which the United States shall be a party;--to controversies between two or more states;”

    US Code 1251(a) ... (Original Jurisdiction) ...

    “ The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.”

    US Code 1254 and 1257 deal with cases percolating up from state or federal courts and use the word “may.”

    1. It's simply a disgrace that the SCOTUS should, virtually in so many words, tell all those states and nearly 80 million people to get lost. The constitutional issues were very clear. That's why I say they delegitimized themselves as a constitutional institution. But having basically withdraw themselves from their constitutional function, that trashes the constitution as a whole.

  10. I am going to take a different view. The court knows that other cases are coming on the same point. e.g. Lin Wood. Perhaps they foresaw the issues of states suing other states in the future and didn't want to give standing here which would open a can of worms. By dismissing it so quickly it gives other parties more time to get there cases in. Powell will have 4 suits filed by tonight. The Court gives no indication of their views as was the case with Alito on the Pennsylvania case. There is a kneejerk reaction from furstration rather than maybe thinking through a bigger game plan. We will know more on Lin Wood this week and if the Pennsylvania case proceeds. A writ of certiorari still needs to be filed (I think) for the Kelley case but that could be done on Monday. Once the case is docketed that could be up and running. There is a bigger picture here. I am offering a view only, I have no clue what will happen but there are a lot of smart people out there. It is certainly fascinating.

    1. To put is simply the NWO wants America and almost all of elected and unelected "officials" are compromised or scared!

      It's up to us, now!

  11. Conservative States of America...and the new SCOTCS?

    1. I reject any division of the country, especially when the world is such a small and lethal place. Why should a relative handful of Leftist oligarchs be awarded any state or territory beyond a cell in Gitmo? Are you going to tell the millions of conservatives who live in California that they have to give up their rights and property just because the marxists in LA and Frisco hate the Constitution? There are no blue states, only blue cities and red everywhere else. This election proved that an overwhelming majority of Americans want the kind of government Trump offered. !@^& if we let that be stolen.

  12. The problem, it appears, is that the Supreme Court has replaced the “shall” with “may” all on it’s own. I believe that ultimately came to be in 1990.

    Someone here on this thread or another stated as much that our courts are conflating the issue. It clearly appears to be the case.

    They set aside the truly clear language of the Constitution and instead inject ambiguities that just did not exist (shall v may, case v controversy).

    1. I would suggest that they did take it up in this instance and peremptorily decided no standing.