Posted on Friday December 11th, 2020 at 2:06 pm by Tom Goldstein
Texas’s attempt to bring an original lawsuit against the election results in four states is not a serious legal claim in a legitimate procedural line for reasons many people have already given and which I will not repeat here. It’s easy for the Supreme Court to deny Texas permission to file the complaint (and reject requests for intervention as in dispute) and deal with it. No fuss, no must.
But the court should do more. It is perfectly normal and appropriate for the judges to issue an opinion explaining the various reasons why they are rejecting the Texas motion. In fact, the minority of judges who feel the court must accept original lawsuits such as Texas’ may be able to draft their own brief opinions or find that they believe the case was properly filed. So there is nothing too far-reaching for a majority in the court to explain why the case is unfounded.
The judges’ decision to do so must take into account this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have convinced tens of millions that the 2020 presidential election was stolen. If this view continues, it threatens not only our national politics for the next four years, but also the basic public confidence in elections of all kinds, which form the basis of our society.
A simple five-sided opinion per Curiam could really end up in the pantheon of the most important decisions of all time in American history. From time to time the court must invest some of its accumulated capital in delivering judgments that are not only legally correct, but also respond to impending, tangible threats to the nation. This is particularly appropriate when, as here, the court is being used as a tool to actively undermine trust in our democratic institutions – including from the members of the bar on which judges depend to act much more responsibly.
At a time that is so polarized, I cannot think of any other person, group or institution than the Supreme Court that could be better for the country right now. Proponents of the president, who have come to believe that there has been a conspiracy in multiple states to steal the elections, acknowledge that the court is not a liberal institution. If the court is telling the truth, the country will listen.
Tom Goldstein, Editorial: Don’t just deny the original Texas action. Decimate it.,
SCOTUSblog (December 11, 2020, 2:06 p.m.), https://www.scotusblog.com/2020/12/opinion-dont-just-deny-texas-original-action-decimate-it/