Supreme Court of the Holy Roman Empire
On Monday, Dec. 7, the State of Texas filed a lawsuit in the U.S. Supreme Court, under the Constitutional claim of original jurisdiction (Article III, Section 2).
On Friday, Dec. 11, in a 7 – 2 decision, the Supreme Court peremptorily dismissed the case.1
The Court was legalistic here. Arguably, it was wrong on the law.
More importantly — and far worse — the Court failed to be strategic.
To use a term from Clausewitz, the Court missed the “center of gravity” of the controversy before it.
Dismissing the Texas case was not just a legal error. It was a blunder by the Court, and of the first magnitude.
Let’s dig in…
Last week, I discussed the Texas case. The headline was “Texas wants a day in the Supreme Court.”
Texas filed suit, along with 17 other states as amicus, or friends of the court: Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
Independently, Arizona filed amicus to support Texas. And Ohio filed too; not wholly to support the Texas claims, but to petition the Court to answer fundamental Constitutional questions.
All in all, 19 states raised Constitutional questions under the doctrine of original jurisdiction.
Which means… what?
Historically — if not philosophically — we’re back to the 1780s and Articles of Confederation. National-level governance of the fledgling United States was so disjointed that the country was failing. It couldn’t even begin to pay off its Revolutionary War debt. I discussed it here.
Flaws of the Articles of Confederation led to the Philadelphia Convention of 1787, and out of that the U.S. Constitution which brought states into closer, more workable union.
But states were jealous of their independence. Among other things, smaller states feared being bullied by larger ones. Something was needed to reassure state governments that they would have a mechanism to resolve disputes.
And this is why we have that original jurisdiction clause, nestled in Section III, Article 2.
To cite no less than the Supreme Court at the 1869 case of ex parte McCardle, “Jurisdiction is the power to declare the law.”
And the Constitution places original jurisdiction with the Supreme Court for “all cases … in which a state shall be party.”
Over the past 230 years, original jurisdiction suits typically involved issues like state boundaries and water rights.
But last week, Texas amped-up the humble background of these cases by orders of magnitude to the dispute the process of a national election for President.
It’s unprecedented, and here’s what I wrote:
“The Supreme Court has discretion to accept any case, even one filed as state versus state, under original jurisdiction grounds. The justices might simply issue a terse, one or two sentence dismissal. No hearing. No argument. No scrub of the merits of the Texas claims, as backed by 18 other states.”
Sure enough, a day later, seven justices gave the Texas case all of two sentences in their order of dismissal:
“The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
It’s telling, however, that the decision was not unanimous; it was 7 – 2.
Justice Alito, with whom Justice Thomas joined, wrote, “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”
Importantly, this case is not just one state versus another state. It’s a far cry from a surveying dispute over shifting sands in a meandering river and the flow of water.
This case is about 19 states suing four others, making Constitutional claims that ring the most profound bells within the nation’s fundamental legal blueprint.
Yet the Court majority breezily dismissed the matter, in essence declaring that 19 states lack standing to come before it.
Seriously? Lack of standing?
Forget the facts and legal merits of the Texas case. Freeze them and set them aside.
If not the U.S. Supreme Court, where should Texas, and other states, go when they have a dispute that’s grounded in Constitutional principles?
It’s not as if these kinds of matters have a forum down at the Board of Sewer Appeals, let alone a district court in Houston or Philadelphia.
And don’t say “Gettysburg.” The country tried that once.
Supreme Court dismissal or no, the Constitution says what it says: “Original jurisdiction.”
Unless, of course, parts of the Constitution are now merely dead letters. And if so, perhaps the Court ought to make that clear too. Because what else is dead about our Constitution?
Now, let’s look at that second sentence of the majority decision: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Really? But Texas — and amici — laid out exactly how they claim to be harmed.
Of course, as in all lawsuits, these claims are subject to dispute by defendant states Pennsylvania, Georgia, Michigan and Wisconsin. Which is exactly what happened with reply briefs, filed on Dec. 10.
That is, the defendant states explained why their elections were just fine and are not subject to second-guessing or meddling under the Texas lawsuit.
Obviously, there’s a difference of opinion here.
And the country might have benefitted from a good set of arguments on the matters.
But by abruptly dismissing the Texas case under the guise of no “judicially cognizable interest,” the Court has left a gaping hole in the national political order.
Conveniently, the lawsuit has gone away, yes. The Court washed its proverbial hands of the distasteful matter.
Because it’s political, and all that…
Then again, states are political entities, and the Supreme Court is a creation of politics too.
Meanwhile, as the Court closes its bronze doors to Texas and others, the sentiments and political frustrations that underlaid the original suit still fester.
Which gets us back to Clausewitz and his idea of a “center of gravity,” the point around which all else revolves.
In essence, there’s an unspoken issue here, that of a sense of basic respect towards the American people by the governing elite of the nation.
Not to put too fine a point on things, the black-robed high priests and priestesses in the Supreme Court’s marble temple ought to consider what’s happening outside.
Right now, about one-third of the country’s population harbors a sense of distrust about the recent election and the motives of another third of the population.
The Court could, if it chose, clarify any number of festering matters that are poisoning civic life across the land. And the Texas suit brought a dump truck full of items right to the loading dock of the Court.
Let’s just say, for argument sake, that the Court accepted the Texas lawsuit. Say that it granted Texas “leave to file,” and then set an aggressive briefing schedule with oral arguments. All within a week, perhaps.
Texas comes to court with all of her friends.
The defendant states show up with their amici as well.
In three hours or so, the nation is held spellbound to legal and Constitutional arguments. The justices rip holes in the arguments, back and forth.
It’s an epic day in American governance.
Then the justices write opinions.
And let’s say that Texas loses the case.
But losing on the merits after a day in court has its own benefits.
Being tossed out without a hearing, though? Bad idea. Bad strategic thinking.
By promptly dismissing the Texas case, the Supreme Court may have thought it was disarming a ticking bomb. But really, the fuse is still burning.
Here’s what the Court missed.
Texas raised issues, of course, joined by 17 other states.
The four defendant states replied, supplemented by amicus briefs from 22 other states and territories. There was plenty of grist for the legal mill there.
Presumably, the justices read all the briefs. But does the Court reinforce its credibility with a summary dismissal? Hardly.
Meanwhile, numerous other amici groups raised related, deep-seated — profound is not too strong a word — Constitutional issues that are well worth discussing.
For example, one amicus brief raised important questions about the very nature of election “day” in the U.S., referring to the singular word as written in the Constitution, Article II, Section 1.2
The argument focused on the fact that numerous states have expanded voting times, places and manners via early voting, mail-in ballots, etc., to the point where people in different states have very different voting protocols, leading to equal protection issues.
Meanwhile, Ohio made a straightforward argument to the Court, citing numerous instances of states making last-minute changes to election rules before this past Nov. 3. Here’s the gist of the claim:
Although Ohio does not endorse Texas’s proposed relief, it does endorse its call for a ruling on the meaning of the Electors Clause. More precisely, Ohio urges the Court to decide, at the earliest available opportunity, whether state courts and state executive actors violate the Electors Clause when they change the rules by which presidential elections are run.3
Another amicus brief, filed on behalf of a long list of representatives from Alaska, Arizona and Idaho, raises Article IV, Section 4 of the Constitution, which states that: “The United States shall guarantee to every state in this union a republican form of government.” (Often called the Guarantee clause of the Constitution.)
The brief goes into the fascinating history of this clause, going back to the earliest days of the U.S. and its Constitution, as a new nation hemmed in by Britain to the north, France to the west and Spain to the south.4
In 1787, the Constitution drafters wanted to ensure that no new states entered the union bring a monarchical form of governance or other form of governance that was overly dominated by single factions.
According to the amicus argument in the Texas case:
“When one or more states cease to operate under a Republican form of Government, all states are denied the Article IV, §4 guarantee of a Republican form of Government. In this instance, the reticence and failure of sister states to appropriately fulfill their constitutional duties with respect to a presidential election has materially injured the Republic shared by all states. Echoing a concern articulated in the Federalist Papers (Nos. 18 & 19; BWK), a federal system comprised, like the Holy Roman Empire and Delphic Amphictyony, with incompatible power sources, power ideologies, and power structures cannot function cohesively.”
Well, they nailed that last point.
And hell’s bells… I had to look up those references to the Holy Roman Empire and Delphic Amphictyony.
Getting back to the here and now, is there really any doubt that the U.S. is not functioning “cohesively” anymore?
Not perfectly, just cohesively!
In many respects, the country is little more than a continent-sized playground for political power clans who work within the framework of extravagant monetary policies, to the end of lining their pockets.
All this, while things are spinning out of control here in COVID-land.
With that Texas case, the Supreme Court had an opportunity to clarify many incendiary issues of modern governance.
And hey, why not? After all, this is a court that takes cases about what kind of cake a pastry chef can be compelled to decorate, and who can use which bathroom.
Is the Court saying that it has no judicial time or interest in painting a few bright lines on the public highways of politics, as regards election day and processes?
Then again, perhaps the justices are simply happy and content to be members of the Supreme Court of the Holy Roman Empire. For a while longer, anyhow…
On that note, I rest my case.
That’s all for now… Thank you for subscribing and reading.
Managing Editor, Whiskey & Gunpowder
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4 Republican Form of Government, Supreme Court of the United States