EsquireDaily
News

Editorial: Don’t just deny Texas’ original action. Decimate it.

blank

Posted Fri, December 11th, 2020 2:06 pm by Tom Goldstein

Texas’ attempt to bring an original action challenging the election results in four states is not a serious legal claim in a legitimate procedural posture, for reasons that many people have already given and that I will not repeat here. The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

Posted in Texas v. Pennsylvania, Featured, Election litigation

Recommended Citation: Tom Goldstein, Editorial: Don’t just deny Texas’ original action. Decimate it., SCOTUSblog (Dec. 11, 2020, 2:06 PM), https://www.scotusblog.com/2020/12/opinion-dont-just-deny-texas-original-action-decimate-it/

Related posts

NATO Membership for Sweden, Finland on Track, Officials Say

David Appleton

The morning read for Tuesday, Oct. 25

Ray Morrison

The morning read for Wednesday, July 27

Ray Morrison

The morning read for Thursday, Dec. 1

Ray Morrison

The U.K.’s Healthcare Crisis Sounds an Alarm for Aging Countries

David Appleton

The morning read for Wednesday, July 6

Ray Morrison

Leave a Comment

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. Accept Read More

Privacy & Cookies Policy