Friday, December 4, 2020

Where Does The SCOTUS Stand On Pennsylvania?

The short answer is that we don't know for sure, but that the Court is almost certainly divided. Shipwreckedcrew--whom I take to task in another respect--has a detailed explanation that's worth studying. 

Justice Alito (who handles PA for the SCOTUS), no doubt after extended consultation with the other justices, has directed the attorneys for PA to reply to the Trump side's request for injunctive relief (to prevent certification). HOWEVER ...

The deadline for the reply is the day after the slate of electors will be basically set in stone (the "safe harbor" date).

Is there any hope from this? Possibly. 

Obviously the PA attorneys will delay until the slate of electors is set.

Nevertheless, this decision pertains only to the request for injunctive relief. There appears to be a steady flow of substantial evidence of fraud that is being uncovered. Here's how SWC sees it:

Justice Alito’s order likely means there are not 5 votes to grant the emergency injunctive relief and prevent the naming of Pennsylvania’s electors — at least not with respect to the complaint filed by Congressman Kelly seeking to declare the entire “vote-by-mail” scheme enacted by the Pennsylvania legislature as a violation of Pennsylvania’s Constitution.

But the fact that he has ordered Pennsylvania to respond does suggest that there may be some sentiment in the Court to take up the case — likely in combination with other cases now before the Court regarding the Pennsylvania election process.

But this means that the SCOTUS isn't inclined to try to rescue us from this national disgrace. I can understand that, from one perspective. The justices know that the SCOTUS is a fragile institution--ultimately weak in the face of the political branches. It relies for its authority on its prestige, and is loath to invest that authority in political disputes. What it needs is some real sense that the national sentiment is behind it, and that's precisely what it lacks in this political dispute. Yes, I know that there's more than politics involved in this--far more. But still ...

The justices can see as well as any of us that our constitutional order is broken. If you were a justice would you elect to, perhaps, go down fighting but sacrifice any hope of restoring that order, or would you essentially play for time in the hope that a clear national mandate for that restoration emerges? In other words, try to preserve what can be preserved of the constitutional order. There's a lot that could be said. Here's what SWC says:

The bigger problem we have as a nation is that we are acquiescing to voting processes that are not capable of being verified and tested in a meaningful fashion during the time period available under the statutes and Constitutional provisions that determine how Presidents are selected. The voting process is captive to partisan political interests with a motivation to bend it to their needs. Then, when their actions are questioned, those raising the concerns learn that all the “evidence” that might establish what took place is within the control of the same partisan actors, and everything becomes subject to efforts to “run out the clock” on any bona fide challenges.

The country needs uniform voting standards and procedures across all 50 states. The security and integrity protocols need to be the same across all 50 states. The audit and electoral contest procedures need to be the same across all 50 states.

I'm sure none of that is news to the justices, but they also know that only Congress can take the necessary action. Congress has had lots of time to take that action, but they haven't--largely because We the People haven't demanded action. That's symptomatic of real systemic dysfunction that is a product of corrupt Dem appeals to identity politics.

It's all unutterably sad. I will say this. If it comes to a Biden inauguration, I hope that Trump can see his way to not lending dignity to such a travesty.


  1. Are you saying you do not think the Supreme Court will intervene?

    1. I can't possibly say that with certitude. I doubt it at this moment, if by 'intervene' you mean in some decisive sense.

    2. :

      "A campaign team member for Sen. Kelly Loeffler was killed in a crash on Interstate 16....
      Deal was killed in the crash. Three other people were treated at the scene for minor injuries.
      Harrison Deal was dating Georgia Governor Kemp's daughter Lucy...."

      Would SCotUS still lay low, if dozens of GOP aides have soon have "accidents"?

  2. I'm not accepting this sorry but enough is enough.

    Hopefully there are enough like minded individuals whom will stand up and fight to make a difference but... I fear not.

  3. Were I a conservative justice, I might be tempted to factor into my decision-making process that my place on the conservative majority of the court could well end up being short-lived if Trump loses PA and the election. The Jan 5 runoff in GA might well end up being the death knell for the 9 person Supreme Court. Alito has floated trial balloons about retiring. If the court gets packed he could pack his bags rather than being perennially in the minority.

    This just keeps getting worse. Why wouldn't 75 million disenfranchised Trump voters consider alternatives to ballots? Especially when the GOPe is already talking about amnesty, passing H1-B visa sops to Big Tech, and generally kicking Trump to the curb at every opportunity.

  4. Add this to the Barr letdown. There's no silver lining here, none. The Democrats control everything. "Voting processes that are not capable of being verified"? That's exactly what they want! They call you racist or vote suppressor if you think otherwise.

    I never held out much hope the SC would do the right thing. Playing for time. That's not an option when you've lost the war.

    A pox on the whole damn lot of them.

    1. "Playing for time. That's not an option when you've lost the war."


      And if any of the Court's 5 non-hack members thinks the Court can minimize involving itself in politics by copping out, just how the hell is sweeping this ultra-political & criminally anti-democratic operation under the rug not deeply & inescapably political? The duty - yes, DUTY - of the Court is to decide controversies, not run from them. All they have to do is consolidate the main cases and force out as much truth as possible. If they decide from there to let the political branches have the final say, how is that more political than memory-holing it and flipping the bird to half or more of the country in the process?

      It's a lot like the old Trotsky line: the Court may not be interested in politics, but politics is damn sure interested in the Court.

    2. On another thread today, Tschifty makes a relevant point:
      "The main takeaway here is, that the Supreme Court is not going to do this piecemeal.
      They will wait until there are enough credible cases that, taken together, could affect the outcome of the election."
      To everyone, does this actually sound likely?

    3. I have replied to the other thread, but for the sake of convenience, also copying below.

      I don't have any insider knowledge on any of this but what Mccoy says above makes sense to me. I think here is how Alito + 4 thinks the order of events should be:

      1. Let state officials (governors, SoSs) have their say, and let state legislators have an opportunity to claim their constitutional rights to act, by December 8th.

      2. In the meantime let state and lower federal justices oversee evidences and cases built.

      3. By December 9th, all cases from contested states should be mature enough to be consolidated into a single case. (This is what Rudy stated as their plan as well, a short while ago in his youtube channel).

      4. Between 9th and 14th, SCOTUS studies the case and makes a decision, likely throwing the ball to US Congress (assuming 5 R judges hold the line, I don't count Roberts as a R). I think it will have to be somehow disqualifying those states that violated the US constitution, rather than fraud. So lokely PA, GA, MI and / or WI. This should prevent both candidates reaching 270.

      5. After that, US Congress does its thing, after going through Pelosi's shenanigans. Hopefully selecting Trump.

      6. There's also a chance Trump acts preemptively, right after #4 above, declaring a partial martal law, and without taking the risk of allowing another round of Democrat shenanigans, clean the house. Alternatively he might wait until #5 occurs, but if the Congress somehow selects Biden, it might be too late to trigger martial law option labelled as constitutional.

    4. In #4, what could SCotUS do, to ensure that Pelosi doesn't stop the House from convening?
      Could they clearly imply, that they'd not overrule Trump acting preemptively (right after #4, and after Pelosi stops such convening)?
      Were they to do so, it could help build public supt. for DJT's bold moves.

  5. "go down fighting, but sacrifice any hope of restoring that order, or would you essentially *play for time*, in the hope that a clear national mandate for that restoration emerges? In other words, try to preserve what can be preserved of the constitutional order...."

    Play for time, in the hope that a clear national *mandate* for that restoration emerges?
    If this means days or weeks, the mandate will likely not be very broad.
    If they delay for months, let alone years, there won't be enough of a nation, or a Const., left, for SCotUS to be anything more than a rubber stamp, like the Senate after Octavian set up the Principate, and esp. after Diocletian set up the Dominate.

    1. Make that "like the Senate was, after Octavian...."
      If a SCotUS can't move in, to assure 1/2 of the populace, that their Liberties won't be extinguished (after a very suspect Machtergreifung by the Dems), then "preserving the institution" will be preserving a lame fiction.

  6. Starting with the GA runoff election, the only way to save this country is to force these poll workers to validate every mail-in ballot. Probably 30% are bogus. If we win the 2 GA senate seats, the democrats won't be able to destroy us.
    Then in 2024, Trump can retake the presidency if we force the verification of mail-in ballots. We also need to do something about the voting machines ? Maybe destroy the darn things ? And demand a paper trail.

    1. Problem is there's another consequential election in 2022.

      Say we manage to hold for this election. Then in '22 two Republican Senate seats will be subject to Philly and Madison election controls.

      I confess I'm interested to see if Republicans (normals, not party officials) raise holy hell in future elections, forcing them to be secure in some fashion.

      But assuming the standard stupidity, the Dems can do quite a bit of destruction in a short amount of time.

    2. Sorry B, you're living in a dream world. I get it. Our brains are wired to avoid pain and seek out answers that will avoid danger and risk. But like it ir not the Almighty has chosen each of us to live in oerhaps the most consequential times since...1861? 1776? 1942? We can try to hide and tell ourselves as many Republican politicians and pundits do that, oh well, regroup, come back strong in 2022 or 2024...Trump was afterall just too 'Oh I never!' and the sooner we get back to normal uniparty politics the better. Anyone who thinks this way either refuses to see reality or is naive. Trump's election in 2016 wasn't supposed to happen. And the...Deep State/Left/Democrats/Globalists...whatever you want to call these enemies of America have spent 4 years staging coup after coup to remove President Mistake. Do you realize just how profoundly broken and infiltrated our government is at every level? What we are seeing is not "shenanigans" or elction fraud, it is a concerted effort--- a continuation, really-- to remove the Mistake once and for all and put in place an administration that is fully bought and paid for, that will work to ensure that We The People never have another person elected who can ever threaten or disrupt the Global Reset.

      This is it. All the marbles. Unless Trump uncharacteristically surrenders, it will be war. It already is war, just a cyber, covert war for now. I am counting on the President and the military to uphold their oaths of office against all enemies, foreign and domestic.

    3. I'm afraif you are 100% right Tschifty.

    4. @Tschifty, I agree with your realism, but not your prescription.

      If Trump cannot prevail in the legislatures or the courts, he must not attempt to prevail with the military. That would merely affirm the slander that he is a dictator.

      You can't force a people to be free.

      I believe Trump has a post-Trump role to play, although I doubt it's as a 2024 candidate. Rallies, new media, new party...there's several alternatives.

      But the uprising, if there is to be one, must come from within, from those who demand liberty.

  7. The US supreme court is a valid avenue to a contested election as history has shown. Heck, even a contested election that did not go to the supreme court was decided by a committee partially comprised of supreme court justices.

    That said, the supreme court of today appears less willing to inject itself in this current contested election and, in my view, further advances its irrelevance as an equal part of the constitutional triumvirate.

    AG Barr’s statement on using the DoJ to solve political, civil issues is appropriate to the our current use and understanding of the supreme court.

    Thing is though, unlike the DoJ and unlike chief justice Roberts, the supreme court is a political animal per it’s Constitutional setup.

    I am reminded of what my 20 something niece told me regarding historical contested election in that this was a long time ago meaning it’s relevant today.

    That is what the supreme court is of today, declaring from on high by decree or non-action, but ultimately, like Constitution itself, not relevant.

    The only way for the supreme court to enact its edicts or non-actions is via compliance and acceptance by the other branches of government, meaning, ultimately, by the will of the people.

    The zeitgeist is demanding Biden be President. The zeitgeist almost always wins.

    (Capitalization is intentional)

    1. In 1877 it turned out to be ONE SCOTUS Justice, James Philo Bradley, who made the unexpected choice for Hayes on all the votes. Apparently his wife who was a Republican got to him.

  8. I think there are five Justices who will stand up for the Constitution. It is their duty, and their sacred honor is at stake; as is the Republic.

    People say there would not be another Civil War; I'm not so sure.

  9. Capitalism vs communism...that's it in a nutshell. Never really expected it take place on our home turf. Well, s**t.

    1. not really...capitalism isn't the opposite of communism.

      It's liberty vs tyranny. Tyranny comes in many forms, right now manifest in the Dem party as an alliance between globalism and Marxism. But they are not the same thing, and it remains to be seen how they consume each other and what emerges on the other side.

  10. Dumping 80 million blank ballots at the post office is sure-fire method to win elections...

  11. FWIW, I do NOT believe the zeitgeist is demanding that Biden be president. But I do think that a cabal of powerful interests is demanding it. The pre-election polls, designed to deflate R morale, the near total suppression of the corrupt Hunter Biden business dealings, the calling of Az by Fox, the refusal of the media to air reports of significant electoral fraud, the brazen shut down of conservative opinion on social media, etc. have shaped a public opinion that is prepared to accept the election results.
    The problem now is how to break through this almost impenetrable wall. State legislators by themselves are too weak. They need strong encouragement or direction from the SCOTUS. SCOTUS prudently looks to public opinion. They don’t want to appear to be overturning the election out of nowhere. But how can public opinion turn, on short notice,especially if the public hasn’t a clue to what’s actually going on? Add to that that the public is exhausted and compelled to remain private, in their restricted pods, and you have an impasse. Someone or some institution, must lead, and all but Trump, are looking to the other guy to take the reins. The only slim possibility is that Trump, by himself, can rally the people in each of the contested states, that he can tilt public opinion massively in favor of action. Then, maybe, just maybe, SCOTUS would rule favorably on a consolidated case that reflects the will of the people. But such an outcome would be nothing short of miraculous.
    Yesterday I dared to hope. Today? I can only pray.

    1. Pretty much where I'm at. I'd like to believe that the public opinion will gel and that the SCOTUS will see the opportunity to step in, but I'm doubtful that the timeline will allow that. And then I look at the pair that's being foisted on us, and by whom ...

  12. Truly, we are between a rock and a hard place. Without hope and yet forbidden to despair.

  13. Maybe Trump will turn the wind with his rally today. He had turned the wind against lies that he was 15% behind, about 2 months before the election in September.

    After all, that's what he's best at.

    If I was close to Georgia, I would go. I'm up in Canada though :(

  14. If SCOTUS fails to intervene, I do think it possible that they will order Congress to enact uniform voting requirements “with all deliberate speed.” If I remember correctly, the guarantee of a Republican form of government is a dead letter, but the courts have plenty of other remedies to ensure that every legal vote counts. I suppose they could also breathe new life into the guarantee clause, though they would not have to to achieve a sensible remedy. I wonder what the lawyers here think? Cassander?


    1. Absolutely not. That will never happen.

    2. @Alethia and Mark

      I honestly don't know what to think at this point.

      The constitutional construct around national elections is not easily managed, if that is the right word.

      Power to determine who the electors are is given to the state legislatures, subject, presumably, to some Constitutional guarantees, but, as we are discovering, the state legislatures are seemingly reluctant to do the right thing and exercise their inherent powers. I would posit that the state legislatures, thought by the Founders to be closer to the people and the right actor to enforce the will of the people in a constitutional republic, in the 21st Century...may simply not be up to the job. But, we'll see. the Game is not quite over.

      I'm also still perplexed by the Supreme Court's actions to date. There are most certainly Constitutional guarantees to equal rights and due process which are alleged to have been violated in Pennsylvania and elsewhere. If the Supreme Court will not protect these rights, no one else will. I guess I disagree with Mark, here. In an appropriate case or controversy (as opposed to on its own motion), I could imagine the Supreme Court ordering relief to bring voting practices within Constitutional boundaries. I believe the Supreme Court has issued similar orders in school desegregation cases, school busing, for example, and, in fact, voting rights cases...

      But this Supreme Court? At this stage who knows what they are thinking. As I said recently in a different context...not a good look. When more than half the country believes this election has been tainted by massive fraud.

    3. As for the State legislatures, I never held out much hope for them. They are largely bought by special interests who are anti-Trump.

    4. @Mark

      I think that's a bit hyperbolic. The state legislators in my state are majority Republican and undoubtedly recipients of special interest (largely business) contributions. If I had to say, I would say that being 'bought' or 'anti-Trump' isn't the problem. More likely, is the fact that they have never given a first thought, let alone a second thought, to their role in a contested national election. And there is no playbook.

      I assume the conspirators anticipated this.

    5. @ Cass, on:
      "Constitutional guarantees to equal rights and *due process*....
      If the Supreme Court will not protect these rights, no one else will....
      I could imagine the Supreme Court ordering relief to bring voting practices within Constitutional boundaries.
      I believe the Supreme Court has issued similar orders in school desegregation cases, school busing, for example, and, in fact, *voting* rights cases..."

      If the Court dare not protect Due Process in voting/ counting, it has no business existing.
      If the Court will allow one faction to stuff ballot boxes at will, it has no business existing.
      If the Court refuses to bring relief (e.g. by preventing state authorities, from Certifying election results which do not deserve to be "CERTified"), it has no business existing.
      So, Justices, must Dems make a nat'l show, of stuffing ballot boxes, or of mowing down masses of GOP voters, in broad daylight, before you move to defend Due Process?

    6. Cassander can respond for himself. The point that I've been making is, essentially, that the constitution never envisioned the SCOTUS as the bulwark for our constitutional order in the face of lawless political forces--which is why it has no enforcement arm. As early as 1832 Andrew Jackson exposed the SCOTUS' essential weakness when faced with ruthless opposition.

    7. @Mouse

      I agree with you and I have said this before.

      I think the concerns raised by this election cut to the core of the Supreme Court's raison d'ĂȘtre.

      Marbury v. Madison.

    8. "If the Court dare not protect Due Process in voting/ counting, it has no business existing.
      If the Court will allow one faction to stuff ballot boxes at will, it has no business existing."

      It really is that simple.

  15. My that was fast. Inching toward despair.

    1. No. That's just reality. The SCOTUS has zero authority to order Congress to do anything. And Congress DOES have the authority to override the SCOTUS. I still hope the SCOTUS will act, but I place that in the category of hope.

  16. Mark and Cassander, I was going to reply to Mark’s assertion that SCOTUS has no authority to order Congress to do anything, but Cassander beat me to it. I would only add to Mark’s last, If precedent is any guide, SCOTUS does indeed have such authority. Although Congress has the power to override SCOTUS on statutory rulings, it does not have the power to override them on constitutional questions. (Pretty inside baseball, I know.) What’s more, although they can limit SCOTUS’S appellate jurisdiction, they have never done so. FWIW.

    1. I'm sorry. Read this again: The SCOTUS has no authority to order Congress to do anything. I will only stand corrected as to that statement if anyone can provide an example to the contrary. Cassander's are not examples to the contrary.

    2. Congress acts through legislation and resolutions. The SCOTUS has no authority to order Congress to do either of those two things. Period.

    3. OK, SCOTUS has no authority to *order* Congress to do any *specific* thing, but it sure can "encourage" Congress to remedy major issues.
      Wiki describes how
      "Congress shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII, XIV, XV, XIX, XXIII, XXIV, and XXVI."
      But I'll grant that, as a practical matter, even if SCotUS went there now, it would fall short of what's needed in *this* crisis.
      SCotUS needs to stop states from issuing BS "CERTifications", or stop the EC from accepting such

    4. In 1867-8 Congress DID limit the appellate jurisdiction of the SCOTUS--and the SCOTUS unanimously backed down. The case is called "McCardle" and Justice Thomas himself has been highly critical of that decision and said it would be decided differently today.

  17. I'm still trying to wrap my head around the apparent reality that there are not five Justices appalled by the apparent equal protection and due process violations in Pennsylvania...after four of them (pre-ACB) would have intervened before the election...

    There must be more to this than meets the eye.

  18. Cassander, as I mentioned earlier on the site, after Justice Alito ordered Pa. to segregate late arriving ballots and they disregarded his order.

  19. SCOTUS is in a no win situation.

    >The justices know that the SCOTUS is a fragile institution

    If the allow the election fraud to stand, Trump voters, probably the majority of voters, will despise them, The majority of the GOP elected officials will secretly be ecstatic. Media will congratulate them on their brave stand.

    If SCOTUS allows Trump a second term, the Left will go crazy, and there will be blood on the streets. And they will Hate SCOTUS. MSM will do everything to destroy scotus reputation. The results of the 2016 Resistance will be seen as a pleasant memory.

    Roberts I expect to side with the remaining liberals block. He just does not have the guts.

    I question if Kavanaugh and/or Gorsuch has the guts to expose the election fraud.

    My guess is scotus will try to do the minimum and is looking for the easy way out.

    Trump is a master of controlling the media cycle and breaking through their wall of censorship. I expect him to change public opinion.

    1. "MSM will do everything to destroy scotus reputation", unless the MSM's rep is ruined, by Barr etc. stepping up to expose the MSM's role in covering for the DS plot on Russia etc.
      We're paying for the failure of Barr/ Durham to even do that much, e.g. about Ali Watkins & Jas. Wolfe.

  20. He WAS a master of controlling the media cycle, but I question whether that is still true. The media refused to carry the speech he considered the most important of his political life andaccording to a friend who looked for it, you have to hunt to find it anywhere on the internet. FYI, JE Dyer links it, if you haven’t seen it.