Friday night, the Supreme Court’s rejected Texas’s case against the disputed states for “lack of standing.” There are a lot of theories for this decision, but Dick Morris said the unsayable: The Supreme Court was intimidated by the Democrats’ promised court-packing scheme.
The Texas lawsuit went directly to the Supreme Court because it is the only court that can litigate a dispute between two states, and therefore has original jurisdiction for such disputes. Texas’s claim was that the defendant states, by violating constitutional mandates for conducting their elections, injured Texas – which used legal means to vote for Trump – by fraudulently handing the election to Biden.
The Supreme Court, by a 7-2 margin, swiftly rejected the case:
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.
That facile statement is an insult to Trump supporters. “Standing” is not a complicated concept. In Whitmore v. Arkansas (1990) 495 U.S. 149, 155, the Supreme Court explained,
To establish an Art. III case or controversy, a litigant first must clearly demonstrate that he has suffered an “injury in fact.” That injury, we have emphasized repeatedly, must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is “distinct and palpable,” . . . as opposed to merely “[a]bstract,” . . . and the alleged harm must be actual or imminent, not “conjectural” or “hypothetical.” *** Further, the litigant must satisfy the “causation” and “redressability” prongs of the Art. III minima by showing that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.”
Texas met those requirements, showing an “injury in fact” that is “distinct and palpable,” that “can be traced to the challenged action” and that can be “redressed by a favorable decision.” Texas was not just whining how “another State conducts its elections.” This was not a case of “they ought to have used pink paper, not blue paper,” or “the polls should have been open an extra two hours.” Such inconsequential statements would have been claims of the type the Court’s statement described.
What Texas alleged was more profound: The defendant states engaged in unconstitutional conduct to create the circumstances by which Democrat activists (and, possibly, foreign agents) could commit fraud in order to hand the election to Biden. Understood the proper way, not only does Texas, in which Trump won, have a say in what those states did, so does every Trump voter in America.
It’s indisputable that the defendant states unconstitutionally changed their election laws through court action or settlement agreements. Additionally, in each defendant state, there is voluminous (and mostly uncontested) evidence that these rule changes allowed Democrats to engage in massive fraud to shift their citizens’ votes from Trump to Biden.
Had this unconstitutionally enabled fraud not happened, the disputed states would have elected Trump and Trump would have won the national election. That Biden “won” the national election through this fraud is a real harm to every Trump voter and can be remedied through the Court’s intervention. There’s your standing.
That being the case, why did the Supreme Court punt? One theory is that it wants “clean” cases that come up through the state court systems. Another theory is that the Court believes that this is an issue that legislatures, not the Court, should address. Marco Rubio has the right answer to that one:
And then there’s Dick Morris’s take:
“The Supreme Court is after justice, of course, but primarily they are after making sure the Supreme Court survives – that’s their institution and that’s their duty,” Morris told Saturday’s “The Count.” “I believe the Supreme Court was sent a message by Joe Biden and Kamala Harris and the Democratic Party during the election.
“And the message was: ‘If you overturn this election, we will pack you, and make your Court basically meaningless.’”
[snip]
“And just ask yourself: Who raised the issue of Court packing? We didn’t. Why would the Democrats raise an issue that was hurting them? We would never bring it up; we never thought of packing the Court. They did.”
Morris concluded, “it was a systemic effort, that succeeded, to intimidate the U.S. Supreme Court.”
Unless the Supreme Court surprises me this coming week (and I really hope it does and that I am being wrong and unfair here), there’s every to believe reason that the justices are more concerned with status and safety than they are with election integrity and constitutional principles.