One response to my post Friday night has been that courts try to decide cases on the narrowest ground possible and therefore there is not much to include in an Opinion. In this instance, the case was decided on standing and it did not reach the merits of the dispute regarding fraudulent ballots. Standing refers to the requisites to bring a case, such as whether a party has suffered a harm. The parties’ briefs start with arguments that they do have standing and the courts begin with them and assess those arguments. Often, very often, courts issue opinions on the merits of those arguments, even though basis of the decision is narrow. The issue here goes back to a suit in 1900, Louisiana v Texas that seems to clearly show that Texas has no business claiming harm for itself by decisions in Pennsylvania now about its own election procedures. Issuing an order based on a narrow issue does not mean the Supreme Court cannot explain that order in more more detail. One can say a lot just on the issue of why Texas does not have standing. The Court can review the actual arguments made by the parties on the narrow issue, show how weak they are, and even conclude from them issues of competence and professionalism of the attorneys bringing he case. The attorneys can be sanctioned or referred to their state bars for sanction, if it appears the arguments were made in bad faith. In addition to all of this, the Supreme Court often includes dicta in its opinions, rhetoric unnecessary to resolve the case.
Why? They do that for civic education rather than for legal precedent. All of these tools were available to the Court and they did not use them. One reason may be that it might have been hard to get unanimity on a more substantive and informative opinion. Another is the opinion of my colleague Ben Kleinerman, here at The Constitutionalist, that a simple order is more effective than an articulate detailed opinion because of the political passions that might be aroused by judicial rhetoric. On that, the folks at Scotusblog and I disagree. We disagree because the case is not just about resolving this election (where passions seem to be aroused no matter what the argument or issue or manner of presentation or even depiction of facts) it is also about how a smarter version of Trump will try to build on the destructive political legacy that Trump has created. Nicole Mellow and I wrote about the ways losing can sometimes be more effective than winning over the longer term. We may write about why Trump’s loss poses that kind of problem in the future when the picture is more clear — but an excellent preview of this kind of argument can be found in this stunning essay published in the Atlantic this past week by a young sociologist, Zenep Tufecki.
Tufecki writes: “We’re being tested, and we’re failing. The next attempt to steal an election may involve a closer election and smarter lawsuits. Imagine the same playbook executed with better decorum, a president exerting pressure that is less crass and issuing tweets that are more polite. If most Republican officials are failing to police this ham-handed attempt at a power grab, how many would resist a smoother, less grossly embarrassing effort?”