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

SUPREME COURT OF THE UNITED STATES

ARIZONA v. CALIFORNIA

ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT

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.

Kayleigh on Supreme Court: Yeah there’s no way to say it other than they dodged. They dodged. They hid behind procedure and they refused to use their authority to enforce the constitution. pic.twitter.com/VLi04yIrIC

— Acyn Torabi (@Acyn) December 12, 2020