Was There a Supreme (Court) Abdication of Constitutional Duty in Texas “Elector Clause” Lawsuit?

Dec 17, 2020 by David Fowler

Was There a Supreme (Court) Abdication of Constitutional Duty in Texas “Elector Clause” Lawsuit?
I have searched high and low for legal arguments from lawyers explaining why the substance of Texas’ claim regarding the presidential electors clause in the U.S. Constitution was, in the words of many, baseless, absurd, and other like words. I did not find any. I did find two thoughtful commentaries from two really sharp legal experts on why the lawsuit should not have been heard. However, their arguments left me shaking my head.

Laying aside for the moment the question of standing for the sake of focusing on the substance of Texas’ complaint, one of the commentators I read who has an academic and professional background far superior to mine wrote:
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. (emphasis added)

Another commentator of an equally high professional stature wrote:
The Republicans who lined up with Trump in the Texas case are either cowards or worse: those who reject the foundation of a democracy that losers concede after a fair election. We had a fair election, despite what Trump and his supporters say. This will have bad consequences for democratic stability going forward. (emphasis added)
I will not quibble with their assertion that public concerns about the integrity of the ballot box have bad consequences when it comes to confidence in our electoral process. I will not quibble with the negative effects such a loss of confidence will have.

The first commentator wrote something else with which I agree that goes to my main concern with the Court’s disposition of Texas’ electors clause claim. He wrote:
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. (emphasis added)

But he lost me when he explained why:
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. (emphasis added)

Getting to the Heart of the Real Objection to Texas’ Lawsuit

Notice in the last sentence of the explanation I quoted that his reason for a fuller explanation of the Court’s decision has nothing to do with the law, but with political considerations. The same was true for the other commentator. His concern was the potentially “bad consequences for democratic stability.”

Those concerns are not unfounded, but I disagree that constitutional claims should be rejected because of political considerations.

I know some will disagree with me on that, but I disagree with the apparent assumption that the “foundations of our society” and “democratic stability” are not also adversely affected when the nation’s highest non-political body sends the message that the U.S.
Constitution’s requirements regarding electors in presidential elections do not matter.

In this conclusion, I am not alone and offer this spot-on statement by a commentator, Ms. Margot Cleveland, whose resume is the equal of those commentators quoted above:
[B]y failing to mention Texas’s constitutional claims, and by not providing any reasoning for its decision—omissions likely needed for the court to maintain its near-unanimous agreement—the Supreme Court created the appearance that it does not care about constitutional violations. When the question of standing is considered against Texas’s allegations of violations of the Elector’s Clause, it is hard to believe the court does. Or, rather, given their refusal to address Texas’s Elector’s Clause claim, it is hard to believe the justices put the constitutional question above their desire to avoid appearing to meddle in the 2020 election. . . . A few sentences by the court on its reasoning would provide Americans concerned with the legitimacy of the election some assurance.
In other words, to get a unanimous decision to not take up the case and to avoid the risk that the public would perceive the Court to be meddling in the election, the justices chose to leave the impression among those wanting answers to, or at least some future guidance on, real constitutional questions (not fraud or conspiracy questions) that the Constitution doesn’t matter in presidential elections.

By saying nothing on the electors clause claim (it did speak to the Due Process and Equal protection claims), the Court left me with the impression that it had no solid legal analysis to offer on that one particular claim or they would have taken the case and made its reasoning clear to everyone. 
Legal commentators can go back and forth on whether Texas had standing, but only the Court’s explanation is authoritative and only its explanation would have provided sound guidance for when these same problems recur.
Perhaps the Court hoped that Joe and Sally Trumper would be placated by its answer because they wouldn’t know the difference between the three types of claims and the different standing analysis that each required.
Perhaps the Court hoped the bluster by commentators about undermining democracy would be sufficiently salutary to obscure the prospect that their silence really elevated politics and public perception over the rule of law and the Constitution’s authority over us.
Critical constitutional questions were left hanging. As Ms. Cleveland put it, “There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.”
I suspect the lack of answers means we will be back in this same situation four years from now. 
That is not good for any of us, especially for those who expect the Supreme Court to be the one institution that is supposed to rise above politics and simply interpret and apply the law. For them, Friday’s decision was a supreme abdication of the Court's duty.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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