Texas v. Pennsylvania

Texas v. Pennsylvania is a lawsuit filed by the state of Texas, which aims to set aside the 2020 presidential elections in Pennsylvania, Michigan, Georgia, and Wisconsin. The complaint is by far the most outlandish legal document authored by an official governmental entity I’ve ever read, and indeed one of the very craziest things I’ve ever seen members of any bar sign onto in their professional capacities (The competition in this department includes lawyers like Orly Taitz and Sidney Powell, so it’s shall we say intense).

17 other states that Trump won have filed a joint brief supporting Texas’s position, while Arizona, which Biden won, has filed a motion to submit its own brief.

Side note: I notice that the lawyer representing Donald Trump himself in this matter is none other than a colleague of mine at the University of Colorado, John Eastman. Eastman is a racist right wing hack, who is the 2020-2021 Visiting Scholar in Conservative Thought and Policy, which is a position created to bring reactionary academics to Boulder, to diversify the campus climate in this important way.

There’s really no way to describe adequately how absurd and outrageous this lawsuit is. For one thing, it consists of one state asking the Supreme Court to override the election procedures enacted in other states, which by itself is a position that has no basis in American law. But that’s just the beginning of the absurdities here, which include the idea that you can wait to complain about duly enacted election procedures only after you see the results of the election, while only complaining about the use of those procedures in states where you didn’t like the results, while ignoring their use in states that your side won. In addition the lawsuit employs statistical arguments that, to echo Wolfgang Pauli’s famous dictum, don’t even manage to rise to the level of “wrong.”

Is there anything to worry about here? The conventional wisdom says no, but I do have some limited level of concern, based on the evident fact that the right wing in this country has gone completely insane, and the SCOTUS itself has for some time now been a crucial lever of right wing resistance to democratic electoral outcomes.

I do think the chances of five members of the SCOTUS ultimately accepting the arguments in this case are close to zero. Certainly Roberts won’t go along, and I think the odds that either Gorsuch or Kavanaugh are willing to sign on to this craziness are extremely slim.

A bigger concern here, in my view, is that five members of the Court get it into their heads that they want the SCOTUS to deliver some sort of Message to the Nation, in the form of a substantive decision on the merits of the suit. Again I think such an opinion, if things should get that far, is almost certainly not going to accept the arguments put forth by Texas and Trump, both because those arguments have literally no basis whatsoever in law and fact, but more significantly for decisional purposes here because probably only Thomas and maybe Alito are crazy and bitter enough to dynamite the SCOTUS’s remaining institutional capital by doing something this insane. (I suppose it’s possible that God might tell Amy Covid Barrett that he wants Donald Trump to remain president.)

But even an 8-1 or 7-2 substantive ruling here against Trump would be a pretty big disaster (even the Supreme Court was split on the question of whether the election was stolen etc. etc.). Not as bad but still bad would be a public dissent on Thomas’s or Alito’s part from a decision not to take the case.

I do think by far the most likely outcome here is that the Court refuses to take the case without further comment. But it’s 2020, and right wing ideologues of all sorts are getting increasingly deranged. And in any event the fact that 18 or 19 state governments are signing on to this massive Rule 11 violation of a lawsuit that aims to to enact a judicial coup is not a good sign any way you slice it.