In private conversations, I have often suggested that the U.S. Supreme Court should be moved to Lebanon, Kansas or, more precisely, to the Geographic Center of the Contiguous United States. Such a move would achieve two positive things. First, it would bring economic development to the area and lessen the wealth concentration in D.C. Time to spread the wealth! Second, and perhaps more important, it would take the justices out of the Washington bubble and put them in touch with average Americans. Having the justices live among us mortals will make them less likely to issue rulings that only please the elites.
Living in the Washington bubble is the only reasonable explanation for the Court refusing to take cases involving the presidential election. No doubt, the pressure from the establishment to bring a quick end the controversy must have been overwhelming. However, failure to wade in has only made the situation worse in the long run. They should have lanced the boil instead they chose to let it fester.
Let me be clear. I never expected SCOTUS to invalidate election results or to hand the victory to Donald Trump. I did expect them to take the cases and provide a constitutional path forward.
In the case of Kelly vs. Pennsylvania, Associate Justice Alito simply denied injunctive relief in one sentence sans explanation. Without getting too much into the detail, a lower state judge, Patricia McCullough, issued an order to halt the perfecting of the Pennsylvania certification and found the Representative Kelly “appear[ed] to have established a likelihood to succeed.”
BREAKING REPORT: Judge Patricia A. McCullough rules that PA preliminary ELECTION CERTIFICATION injunction was PROPERLY ISSUED and should be upheld..
— Chuck Callesto (@ChuckCallesto) November 28, 2020
“Additionally, Petitioners appear to have established a
likelihood to succeed.”
A few days later, the Pennsylvania Supreme Court vacated Judge McCullough’s order on technicalities leaving the constitutional questions unresolved.
If Alito had no intention to do anything, why bother asking for briefs? Perhaps, he hoped he could find the four votes needed to take the case. It’s doubtful since he issued his denial just forty minutes after the final brief was filed. Perhaps, the Court thought that by asking briefs and then issuing a swift denial, it would send a clear message that it was not going to get involved and, thus, cause the parties to drop their efforts to overturn it. We will never know but they chose the worst possible option. Alito could have easily sent the case back to the Pennsylvania Supreme Court to have them rule on the merits. As it is, the election has a stain of illegitimacy it will carry forever.
The Court got a second bite at the apple when Texas filed a lawsuit against Georgia, Pennsylvania, Wisconsin and Michigan alleging they had violated the U.S. Constitution by awarding electors without following the rules set out by their respective Legislatures. Once again, the Court chose the worst possible option but this time they issued an explanation. The Texas lawsuit was dismissed due to a lack of standing. The Court found that “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections”. Alito and Thomas would have allowed the case to be heard only because SCOTUS has original jurisdiction in disputes between states but they would not have halted the certification process.
In a very brief order, the court says Texas lacks Article III standing to sue other states over how they conduct their own elections. In layperson’s words: a state has no valid interest, under the Constitution, in attempting to police other states’ voting procedures. pic.twitter.com/o2TRRN2PmM
— SCOTUSblog (@SCOTUSblog) December 11, 2020
I disagree with the Court. Texas was not trying to tell any state how to conduct their elections. It was simply stating that the manner in which the states award their Electors must be set out by the Legislatures or it would not be in violation of the Constitution. Moreover, I disagree that the states have zero interest in whether other states follow the Constitution when it comes to the offices of president and vice president – positions that affect ALL states and ALL citizens. Just the presidential veto power alone would suggest that states have an interest in whether a president is constitutionally elected.
Again, I understand that it would have been politically explosive for the Court to halt the certification of the November 3rd results. However, they could have let this election stand and lay ground rules for the next presidential election. The widespread use of mail-in ballots has turned election day into election months. Is this constitutional? Can Legislatures reclaim the right to appoint the Electors if they feel the election was not conducted in the manner they set out? Were voters treated differently depending on the county or the method of voting resulting in an violation of the Equal Protection Clause?
At the very least, they could have ordered the Legislatures in the Defendant States to award the Electors. That would have satisfied Texas. The Legislatures could have confirmed Biden as the winner of their respective states and give him the legitimacy he currently lacks. The Legislatures could also have awarded the electors to Trump or do nothing and let the House of Representatives resolve the controversy. All three options would have provided the country a president elected in accordance with the Constitution.
Instead, the Court took the cowardly way out and created a situation where states are free to ignore the Constitution in the election of the president. Half the county will never accept Biden as the legitimate president. There is a palatable sense that the country has descended into lawlessness. Talk of secession or divorce is gathering steam. The Court has damaged its own standing with the public. Just one more institution that failed Americans at a key point in our history.
