My reading of Justice Alito's statement for himself & Justice Thomas seems to be a minority view, but I disagree, at least tentatively, w those who think the Court's ruling was really a 9-0 defeat for Trump & that Alito was saying he'd reject the suit. 1/
The order stated that the Court denied for lack of standing Texas's motion for leave to file the suit.
Alito w Thomas made a "Statement" which said that in his view, the Court doesn't have discretion to deny leave to file this kind of suit. So, they disagreed w the Court. 2/
Here's where it gets hazy.
Alito then said, "I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue." 3/
What does "would not grant other relief mean?" What does "any other issue mean?"
The majority view, including plenty of folks smarter than me, appears to be that it means that Alito/Thomas agree that Trump loses, they just think he loses on the merits instead. 4/
That is, they think "would not grant other relief" means would not ultimately rule in Trump's favor. 5/
I read it differently. In my reading, Alito is saying that he'd hear the case ("grant the motion") and that he expresses no view on who would win the case ("any other issue"). 6/
So what about "would not grant other relief?" I believe that refers to the other up-front stuff Texas asked for, basically a court order blocking the 4 states from pushing ahead while the case was pending. 7/
Basically, since Alito thinks the Court shouldn't reject the suit in the first place, then he has to reach the other initial questions that the majority never got to. That all I read Alito to be referring to. 8/
If everyone else were right that all 9 agreed that Trump loses, I suspect pretty strongly that the form of the order would have made that clear. There is zero chance that the Court failed to understand that this the sort of moment where unanimity would matter. 9/
(I see people are responding to earlier tweets in this thread but I haven't read them yet, sorry)
I've also seen a variation of the prevailing view, which is that Alito was denying the suit *in effect* even if he didn't quite say so. 10/
The view, if I understand it, is that with the TRO/PI request denied the suit was doomed because events would render it moot, so Alito intended his position to be fatal to Trump's suit, too. 11/
I don't know enough to say whether the suit was doomed to be tossed on mootness grounds if the Court agreed to hear it without granting the PI/TRO. I'll assume so.
I just don't read that dismissal as implicit in Alito's cryptic sentence. 12/
I wish I agreed with everyone else. My view is that a firm 9-0 smackdown defeat of this trash would have been best for the country. I just don't believe that Alito and Thomas gave it to us. /end
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An unexplained, unsigned Friday-evening miscellaneous order is not how the Supreme Court of the United States speaks effectively to the American public at historic moments.
Look, I wish it was too. It isn't.
Well-intentioned, smart people are framing the Supreme Court's order as blunt, emphatic, powerful, a devastating back of the hand. And obviously we're all safer if people buy it. But it ain't reality.
Everyone understands the stakes. The nation is in danger, democracy is in danger. We needed the Supreme Court to rise to the challenge. Instead, it belly flopped.
The game is changing. What's unfolding right now in the Texas v. Pa. case in the Supreme Court, in my view, is significantly different than what came before.
Republican politicians have launched a sneak attack on democracy. It's alarming.
Even as recently as a day or two ago, most informed observers viewed the Texas case as a bad joke, evil but harmless. Texas's initial filing was so embarrassing their own solicitor general didn't sign it. Trump's motion to intervene by John Eastman may have been even lamer.
The first hint of danger came on Wednesday when a gang of 17 conservative AGs led by Missouri's AG Eric Schmitt filed a brief backing Texas.
The Chief Judge of the U.S. Court of Appeals for the Third Circuit, D. Brooks Smith, is one of the heroes of this horrible year. That is both deeply ironic and squarely in character.
(A very, very long thread.) 1/
Circuit judges wield real power, but they do so almost entirely out of the public eye. They’re not on TV shouting over the host, or even on twitter hurling zingers. 2/
They speak to the public through dense written opinions deciding individual legal disputes, no different than judges a century ago. 3/
Opinion Just issued the CA3 Trump case. Bibas with Smith and Chagares.
Affirmed. Trump loses. Resoundingly.
The opening paragraph:
"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
- Winning Brief, Garner
- Supreme Court & Appellate Advocacy, Frederick
- Sense of Structure, Gopen
- Dreyer's English
- Storycraft, Hart
- Typography for Lawyers, Butterick
If you're in CA3, then PBI's Appellate Practice Manual, too.
For me, @BryanAGarner's Winning Brief was the gateway drug, the book that first made me realize how oh-so much I still had to learn about effective writing. And all these years later it's still my answer to "what 1 book should I get first?"
George Gopen's Sense of Structure is an elaboration of Joseph Williams's Style: Lessons in Clarity & Grace, which was the single book that improved my writing the most.