THE SUPREME COURT FAILED US; NOW WHAT?

​THE SUPREME COURT FAILED US; NOW WHAT?
by
Julio Gonzalez, M.D., J.D.

On Friday, the Supreme Court of the United States chose not to hear a lawsuit brought by Texas against Pennsylvania, Wisconsin, Georgia, and Michigan. The decision was a source of great disappointment to those hoping their concerns over voter irregularities in these pivotal states would be reviewed by a tribunal. Worse yet, the decision not to hear the case was a failure on the part of the Court to live up to its constitutionally prescribed duty.

Bear in mind that the case arrived before the Court not as an appeal but as a trial. When the Framers created the judicial branch, it vested all powers dealing with cases and controversies arising under the laws of the United States in a supreme court and such inferior courts as Congress may deem necessary. Generally, the Supreme Court is the final arbiter on issues of law, thus it is the final step for appeals from the lower courts. Indeed, it is in this capacity that most Americans are accustomed to hearing about the actions of the Supreme Court. But in certain specific cases, namely those "affecting ambassadors, other public Ministers and Consuls, and those in which a state shall be a party," the Supreme Court has "original jurisdiction." This is an important difference because in these situations, the Supreme Court serves as the actual trial court. Part of the genius of the Texas lawsuit is that, in taking advantage of its status as a state, it actually was forcing the hand of the Supreme Court to deal with the controversy as a matter of first impression. And of course, as we learned Friday, the Court balked. In doing so, it displayed two shortcomings: one in its reasoning and the other in not carrying out its duties.

First, let's address the Court's reasoning. In the same manner in which the Court opted to dismiss the request for injunction regarding Pennsylvania, it delivered the decision to dismiss the Texas suit in a short narrative. As opposed to the Pennsylvania order where the Court provided absolutely no explanation for its dismissal, in the Texas decision, it at least provided a one-sentence defense.

According to the unsigned order, the Court said it was turning down this case because "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." This assertion is indefensible, as the whole controversy surrounding the Texas suit is precisely how the conduct of an election in another state is negatively impacting Texas. For the Court to have used this unsustainable reason to dismiss this case is intellectually lazy and serves as a signal that the Court simply does not want to deal with this issue, which is exactly the concern thefederalistpages.com has repeatedly predicted would be the major stumbling block to resolving this massive crisis.

The other issue was raised by Justices Clarence Thomas and Samuel Alito. According to Justice Thomas who was writing for both of them, "In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction." Simply put, these two justices are concerned about cutting off a State's only avenue to the Court.

The legal controversy stems from Arizona v. California, a 2020 case dealing with a conflict regarding same-sex adoption laws that was denied by the Court. In that case, Thomas and Alito teamed up to disagree with the majority because, in their opinion, the Court "likely [does] not have discretion to decline review in cases within our original jurisdiction that arise between two or more states." In that opinion, Thomas correctly pointed out that the injustice of the matter is accentuated by the fact that a state has no other recourse before the judiciary. Moreover, Thomas interpreted the "shall" in Article III of the Constitution as a mandate to hear such cases, not as a discretionary assignment.

Clearly, in acting in the manner it did, the Court sent a very strong signal that it did not want to wade into the controversy of the 2020 election, leaving the Texas and the 22 other states joining it without an option in federal court. The contention that Texas does not have standing by virtue of not having a cognizable interest in the conduct of elections within the four defendant states is laughable because the allegedly reckless execution of an election in the four named jurisdictions are denying Texas the opportunity to have the President it rightfully selected to lead the nation and as its highest representative in the executive branch. Additionally, the trend of denying states access to their day in court is dangerous and a disservice to the country. It is a trend, which like justices Thomas and Alito point out, needs to be reversed. In keeping with this idea, the more appropriate recourse would have been to grant the parties leave and then have the defendants argue that the case should be summarily dismissed as a matter of law. This is the manner in which all courts conduct their proceedings in pre-trial. Absent an impenetrable legal hurdle to hearing the case, it gets tried; in this case without the ability to appeal. This is the way the Framers designed the system, and it is the manner in which we should be conducting such cases absent an amendment to the Constitution.

In the meantime, disappointing as it was to see the Texas case dismissed, it is not a Trump case, nor does it affect the legal proceedings brought by his legal team. Thus, we now go back to the lower courts and a Saturday Wisconsin Supreme Court hearing for resolution.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He served in the Florida House of Representatives. He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.

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