Recently in discussing the putative Roberts Strategy, I made a major point of stressing that the SCOTUS does not simply take all appeals. In point of fact, the Court accepts very few appeals. It's not my purpose here to try to provide a tutorial on SCOTUS authority and procedures, nor am I truly qualified to do so. You can find a concise and competent Wikipedia version at:
Procedures of the Supreme Court of the United States
with special attention to
Appellate jurisdiction and
Original jurisdiction
My reason for returning to this subject has to do with the next section--Selection of cases. However, selection--which is largely discretionary--can and does interact with jurisdictional issues in ways that can be somewhat opaque.
To start with, we should note how rare it is that a case actually gets to the SCOTUS, and most of those cases fall under "Appellate jurisdiction". Cases of "Original jurisdiction" are infrequent, typically only one or two per term--simply because cases of that sort are by their nature rare. Note this carefully:
The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.
In terms of overall numbers of cases accepted, those are only about 1% of petitions received at the SCOTUS:
Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which about 1% (approximately 80–100), are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.
With regard to the TX case that we discussed, I believe that we can see there an instance in which jurisdictional issues interact with principles involved in the discretionary selection of cases. There was no real doubt that the issue presented by TX fell under "Original jurisdiction." The SCOTUS did not dismiss the case as not within its jurisdiction, nor did it dismiss the case as failing to state a judiciable issue.
Nevertheless, it appears that for reasons that remained unstated the SCOTUS decided that they should stay out of the election disputes at that point. We speculated on those reasons, so we won't go through that again--the reasons remain, after all, speculative for all but Court insiders. Possible factors included the enormity of what had happened and the short time involved, the prospect of national disruption, the justices preference for deciding these issues on a different basis, and the fact that another important election law case was already pretty much in the pipeline to the SCOTUS.
Whatever the reason, the SCOTUS was then presented with a difficult issue: How to dispose of the case while leaving the issues undecided and without prejudicing their own jurisdiction if future cases of similar sort should arise which they might want to decide on the merits. Openly attempting to decline the case on a purely discretionary basis was a non-starter--even though that was in effect what they were doing. That, I suspect, is how the device of "lack of standing" was selected. Standing is one of those issues that the SCOTUS can play around with and change the rules according to circumstances. Thus, they accomplished their purpose without hamstringing the Court for the future.
That's a theory, and all are free to disagree or to critique any or all of my analysis. Whether or not that was the smart thing to do is a separate issue, which will play out in the future.
