Thoughts on the Supreme Court’s Unanimous Rejection of the Texas Election Lawsuit

I agree with almost everything that co-blogger Jonathan Adler says in his excellent post about tonight’s ruling. He’s especially right to emphasize that the ruling is unanimous, in the sense that all nine justices oppose granting Texas the extraordinary relief that it sought. Justices Alito and Thomas differ with the majority only on the issue of whether the Court has the power to deny leave to file a complaint in an “original jurisdiction” case where one state is suing another. That is an important technical issue that has arisen in previous cases, and is likely to reappear again. But it has nothing to do with merits of Texas’ arguments. As I explained in an earlier post, denying leave to file a complaint was probably the simplest and easiest way for the Court to dispose of this case quickly, and this maybe why the justices chose this approach.

It is also significant that all six conservative justices—including all three of Donald Trump’s own appointees—voted with the majority. Indeed, none of the three Trump appointees (including the recently appointed Amy Coney Barrett, whom Trump said he wanted to get confirmed quickly in part for the purpose of dealing with election disputes) even went so far as to agree with Alito and Thomas’ view that Texas should be allowed to file its complaint (even if only to be immediately rejected). This undermines both Trump’s own expectation that his appointees should just do whatever he wants, and fears by some on the left that they might do just that. Unlike all too many GOP politicians, the conservative justices showed tonight that they are neither Trump toadi