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.
Imagine FDR standing before Congress the day after Pearl Harbor and muttering, "I hereby request a favorable vote on the question of whether we should formally recognize a state of war with Japan, given recent events. Thanks."
That's what the Supreme Court did Friday.
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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/
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.