Supreme folly

News that the State of Texas has filed a lawsuit directly in the Supreme Court to try to overturn the results of the 2020 presidential election has been met near and far with derision. USA Today’s headline was typical: “Texas AG asks Supreme Court to Overturn Trump’s Losses in Key States. Don’t Hold Your Breath.” Or, wrote Bloomberg News, “Texas AG Asks the Supreme Court for a Coup.” U.S. News and World Report was a bit more generous, but still described it as a “Long-shot Texas Case.”

President Trump’s own lawyers have already filed and then lost or abandoned more than 40 similar lawsuits in various states around the country. One might ask why, therefore, with so little success at the lower state and federal courts, Texas Attorney General Ken Paxton decided now was the time for another.

Paxton, however, is relying on an obscure provision of the Constitution, namely, art. III, section 2, clause 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Article III is the part of the Constitution governing the judiciary, and “original jurisdiction” means that, in the small group of cases identified in that clause, a lawsuit can be filed directly in the Supreme Court without having to “work its way up” from the lower courts.

Indeed, so important is this principle that it was partly the basis for the most important Supreme Court decision of all time, Marbury v. Madison. Marbury had been appointed to a minor judicial post by outgoing President John Adams in 1801, but incoming President Thomas Jefferson refused to allow Secretary of State James Madison to deliver Marbury’s commission. Marbury filed a lawsuit directly in the Supreme Court to force Madison to deliver his commission. The court’s decision ultimately turned, in part, on the federal statute that Marbury relied on when filing his case in the Supreme Court. The Court held that the statute was unconstitutional because it expanded the kinds of cases permitted to take advantage of the Supreme Court’s “original jurisdiction.”

Paxton doesn’t have that problem, because one of the clear bases to invoke the Supreme Court’s original jurisdiction is when one state sues another state. Those cases typically involve disputes over state boundaries: Some years ago, for example, the Supreme Court heard a case involving a fight between Virginia and Maryland over the rights to the water of the Potomac River, which rises in Maryland but then forms the boundaries between the two states. The case involved lots of arguing over moldy royal charters, and which one gave which state superior rights.

Of course, merely figuring out where to file the papers is no guarantee of success — that’s why so many of those headlines quoted above were so skeptical about Paxton’s likely success. It certainly didn’t help Trump’s own lawyers in the 40+ lawsuits that they correctly filed.

Paxton’s lawsuit, which is captioned a “Bill of Complaint,” was filed on December 7, and consists of 154 pages. The length is a bit deceptive; papers filed in the Supreme Court are filed on paper that is about half the size of ordinary 8½ x11 sheets, and the Supreme Court’s format rules require huge margins relative to the size of the paper. SCOTUSBLOG, the legal website that obsessively tracks every piece of paper filed with the high court, actually has a link so that those who need to cure their insomnia can download Paxton’s entire “Bill of Complaint” for some late-night reading.

The biggest problem that this lawsuit is likely to run into is a different legal issue known as “standing.” Paxton’s lawsuit is grounded on the notion that the people of Texas were somehow “harmed” when various officials, or in the case of Pennsylvania, its own Supreme Court, allowed either the use of mail-in ballots in the presidential election, either at all, or permitting the ballots to be accepted for counting as long as they were postmarked by election day. He’s arguing that those actions violated federal law because these actions were not taken by the legislatures of those states.

Similar arguments were made, and rejected, in some of Trump’s own lower court cases. Indeed, the Supreme Court itself has already rejected one such case from Pennsylvania that was appealed to the high court.

So it seems unlikely that the Supreme Court will accept that same argument just because the case was filed for the first time at their clerk’s office. But, as the saying goes, stay tuned.

NOTE: On Friday the Supreme Court issued a brief order rejecting the Texas’ lawsuit described in this column.