If you are a lawyer, you may wish to skip this post. If you are not a lawyer, then I rejoice in the fact that you have probably found something useful to do with your life. And you might possibly find these remarks to be of interest.
Today’s canard from the Trump Cult is that the Supreme Court dodged the question. See, for example, WaPo, Trump and his GOP allies vow to ‘fight on’ after Supreme Court rejects legal challenge to overturn election results.
Did the Supreme Court in fact dodge the question? Read on, gentle reader, and you shall see.
Let us say that I become aware of a set of facts—or, in any event, what I take to be a set of facts. And let us say that I believe that this set of purported facts demonstrates a violation of the law—the United States Constitution, the statutory law of a state, Section 22 of the Restatement of Torts, The Iowa City Building Code, what have you.
For example, let us say that I think I become aware that you have cheated on your income tax. Or that your uncle has embezzled money from his employer. Or, to pick another random example, let’s say I am the Attorney General of Texas and alleged facts are brought to my attention purportedly proving that Georgia is violating its own election laws.
I trust you have wrapped your mind around the hypothetical situation.
Now, does my awareness of alleged facts and my opinion about the potential legal consequences of those facts entitle me to waltz into court and demand that the judge engage in fact finding and analysis to assess the legal merits of my claim?
The answer is no.
Before ruling on “the merits”—i.e, what are the legally relevant facts and how does the law apply to those facts?—the judge must first determine whether this is the kind of dispute she is entitled—yea, obliged—to entertain.
Maybe, for example, the law establishing the court does not authorize the court to hear the kind of case the plaintiff wants to bring.
Maybe the venue is wrong. (Plaintiff brought the case in Adams County when she should have brought it in Baker county.)
Maybe the defendant is not subject to the jurisdiction of the court.
Or, maybe the plaintiff is the wrong person or entity to bring the kind of case that is before the court.
Prior to ruling on the merits, a court MUST resolve any such questions that are legitimately presented.
In Texas v. Pennsylvania, which the Supreme Court decided late yesterday, the main threshold question before the Court was whether one state is a proper plaintiff to challenge voting procedures in another state. (As distinguished, for example, from a voter who lost his right to vote in the defendant state, or a candidate who lost an election in that defendant state.)
Unless it wished to violate established legal precedent, the Court HAD to decide the threshold issue about “justiciability” before proceeding to address the merits. The Supreme Court correctly identified the principal quetion, and it gave a definitive answer to that question: No, the Attorney General of Texas is not the kind of plaintiff who may demand that we determine the facts and apply the law in regard to claimed irregularities in voting in other states.
You may not like the answer.
You may think the Court’s answer was wrong. You may think it is just fine and dandy for Texas to tell Pennsylvania how to run and election, and the Supreme Court was entirely wrong to say otherwise.
If so, you have a right to offer your opinion—as long as we still live in the constitutional republic you are trying to bring down.
But if you claim the Court dodged the issue in the case, then you are a liar and the truth is not in you.