More on Judicial Statesmanship

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?”

10 thoughts on “More on Judicial Statesmanship

  1. Dr. Tulis,

    I agree with your stance that the Court should have made a statement as to why they were not going to hear the argument. I disagree with Dr. Kleinerman’s stance that it made a stronger argument to not hear the argument and not make a statement as to why. One stance is helpful to try to bring the nation back together; the other is authoritarian basically saying this is how it is and you have no other choice but to comply and accept.

    I, however, disagree with your stance that the court challenges, especially this last one to the Supreme Court, were without merit and destructive.

    Coming from one of the states that the Texas suit challenged, I feel that there was fraud in our election process. The rules were changed mid-ballot. This has never occurred before, and hopefully will never occur again. The rules that were imposed on one half of the state, the east, were not the same as those imposed on the other half, the west.

    I am not alone in this feeling. Speaking with people in my state, I have a consensus of agreement.

    I realize that we are not “scholarly academics of the Constitution”; however, most that I have spoken to are informed citizens of other academic pursuits. Our thoughts and feelings should also be considered.

    To heal a nation, half of the nation should feel disenfranchised.

    1. Thanks for your thoughtful observations and concerns. I don’t know the details about your state or even what state you are from, so I certainly would not contest what you say. Of course, the first place to raise the issue you mention are the state courts and I just don’t know how that process unfolded in your own state.

      Just speaking generally, not with any knowledge at all of your particular state, different rules for different parts of the state might be a genuine problem, while emergency rules, new rules after that changed the original voting arrangements, rules that enlarged or equalized opportunities to vote for everyone or equalized would not necessarily be a problem.

      The states that litigated in the Supreme Court were challenging results in other states that had certified their votes. What happened in Pennsylvania and litigated there by PA citizens, for example, can’t be challenged in federal court by Texas just because some Texans don’t like the result in PA.

      Another odd aspect of this lawsuit was that many of the GOP Congressmen who endorsed it were essentially saying that their own elections were not valid. They signed on to a lawsuit that they knew would be a loser for merely symbolic and disruptive motives. This, too, deserves to be called out for its dangerous irresponsibility.

      Overall, nationwide, this was one of the most secure elections in American history, according to the Trump administrations own department responsible for the issue and according the many GOP officials in the close states. The case brought to the Supreme Court was unusually weak and because it was it so weak, to make this kind of issue of it was also unusually dangerous. I wish the Court had said so with more clarity. For example, it could have quoted from, or endorsed, the language in the brief by the PA Attorney General and criticized the language in the brief from the Texas Attorney General.

      1. Dr. Tulis,

        I am glad that you took the time to school me.

        I live in Pennsylvania and I will attest that the election rules were changed even after I obtained my absentee ballot.

        There was a different number of ballot boxes, which were never present until this election, in the east of the state than there were in the west of the state. This was a new rule change which occurred even after I received my absentee ballot.

        Speaking of ballots, in Pennsylvania, including the delayed primary, we have never had “mail in voting.” We have absentee voting, which because of my profession, I have engaged in for more than 25 years.

  2. The only general point I can make — and it is not a criticism of you, just an observation of the need for more information for someone to determine whether there was any serious problem in PA — is this: rules changes need to be fair and justified, but the fact that voting was different during a pandemic, to contend with the difficulties of voting in a pandemic, is not itself a sign of a problem.

    I am not the best person to answer specific questions about Pennsylvania. Just reading his brief and hearing his interviews I am very impressed by the intelligence and apparent integrity of your Attorney General. His office should be able to answer your questions and also receive and consider any complaint, if you have one. Here is a link:

    1. I am sorry Dr. Tulis, but I must respectfully disagree with your response.

      The Pennsylvania Attorney General is not a person of integrity. Josh Shapiro, our attorney general if you were not aware, stated on Twitter on October 31, 2020, “If all of the votes are added up in PA, Trump is going to lose.” If this is not a partisan statement before an election then I do not know what one is.

      I am glad that you took the time to send me a link to school me on the Pennsylvania election; however, I can school you because I have voted in the election and have lived with the politics in Pennsylvania for more than forty decades. Filing a complaint with a corrupt state government will go nowhere; and thus is the problem.

      Voting in a pandemic in Pennsylvania is not the issue, because if it was, then the rules should have been the same for the eastern portion of the state as they were for the western portion of the state. In Pennsylvania, we were ALL hit with the pandemic. The pandemic was simply used to create chaos in the state and disrupt the election process.

      I am not posing any questions to you as you thought I did in my prior post. I am simply stating the facts. If you would like more information on how the voting process occurred here in Pennsylvania, contact me and I will forward it to you.

      I feel that the Supreme Court should have heard the Texas case as they should have heard the Pennsylvania case. If they chose to not hear the cases, which they did, then I feel that they should have at least made a statement as to why they chose to do so. By making no statement leaves the country further divided.

      We are a country vastly divided and I am unsure how we narrow that divide.

      I had hoped that a site such as this, which was supposed to present a balanced opinion would have helped; however, since this site does not present a balanced opinion, I do not believe it to be of assistance.

  3. Thank you for reading our posts and offering your own observations. I did not mean to school you — just to elaborate my view. One reason we have a comment section is so that readers can decide for themselves if readers have criticisms. I have no problem at all with you disagreeing with me or offering your opinion and experience from Pennsylvania. One point you could help me with is this: many states have different times, for example different early voting periods, in different cities and counties within the same state. I don’t know the particulars about what was different between East and West PA, but what is it about those differences that makes you think the election was corrupt or unfair?

  4. Dr. Tulis,

    I have been a resident of the Commonwealth of Pennsylvania for the several decades of my existence. I have only voted in Pennsylvania and because of my circumstances, mostly this was done by absentee ballot. This election was handled differently than all of the forty plus elections in which I have engaged, and this cannot be blamed on COVID-19 because except for moving the primary election from May to June, these changes were not made for that election.

    Pennsylvania does not have early voting. Until this election, Pennsylvania did not have mail in voting. Pennsylvania does have absentee voting with the only two reasons for such voting being absence from your voting district or health restrictions which prevent in-person voting. In-person voting can only be performed in the district in which a person resides. Up until this election, absentee ballots needed to be received by the county election office by 5 p.m. the Friday before the election. Absentee ballots have always been place in a security envelope which was placed in a mailing envelope which had to be signed by the voter. If the voter was unable to sign, then a representative needed to sign for the person. These signatures needed to match the signature on the voting register and the application for the absentee ballot.

    With this election, this entire process seems to have been ignored.

    Ballots were to be counted as long as they were postmarked by election day. Ballots did not have to be signed. “Naked” ballots were accepted. There was not signature verification, and ballots were accepted without signatures.

    My absentee ballot still listed all of the usual instructions, which apparently did not need to be followed.

    Now you might say that I apparently feel disenfranchised, however, how does this indicate discrepancy of voting practices amongst counties in Pennsylvania? It does not; however, for the first time “drop boxes” were utilized in Pennsylvania for collection of ballots. In Allegheny County, where Pittsburgh is located, there was a total of five drop boxes which could be utilized on several weekends and only at set hours during the chosen dates. Several of the less populated counties had no access to drop boxes. There was greater than 31 drop boxes in the Philadelphia area with most of them available 24 hours a day. This is what truly makes me feel disenfranchised.

    Election practice was NOT uniform across the state, and thus my feeling of corruption.

  5. Again, thank you for the details of your experience. I think it is actually helpful for those of us who do not live in PA to see what concerns some citizen there who do. Now I understand that the East/West issue that you have mentioned several times and that I did not understand was the different number of drop boxes in different cities and counties. That is an experience that many of our readers, from other states, will also be able to relate to. I voted absentee this year. My voting state is Texas, and there the different number of drop boxes felt disenfranchising as well. In Texas there were few drop boxes in large cities and counties with large minority communities — or the same number of boxes, namely one, as in tiny counties. I mention that because, ideally, we would prefer everyone to have the same ability to vote. From what you say, you were able to vote as you have done in the past. You weren’t disenfranchised, you were able to vote and did vote, but I can see why you think it may have been unfair if you have friends or fellow partisans who were not able to vote this election because of the paucity of drop boxes. I can also understand why you think it would be corrupt if some of the ballots without signatures were fraudulent. Courts have considered all of these issues, I believe, and determined otherwise BUT courts can be wrong. Thanks for your posts.

    1. Dr. Tulis,

      By using the strict definition of disenfranchise– to deprive of a franchise, of a legal right, or of some privilege or immunity–you are accurate in stating that I was not disenfranchised because I got to vote; however, I feel disenfranchised by the entire change in voting process in Pennsylvania which was targeted more so to certain voting sectors. Until this election, the voting process in Pennsylvania has always been uniform. The abrupt change which occurred after the printing of the ballots and was instituted by individuals contrary to the constitution of our commonwealth and not by the legislature made the process unequal and unjust. There was an established process which should have been followed. There needed to be transparency with the process. It is for these reasons that I feel disenfranchised by the entire process of and the handling of the election. And yes courts can get it wrong. By not even hearing the case, voters such as myself are left feeling that our voices do not matter and we should simply sit down and shut up.

      Good luck with your site.

  6. Dear Dr. Tulis,

    Hopefully you will receive notice of this post.

    One of the cases that the US Supreme Court is to hear this session is one that Representative Mike Kelly who is from the 16th Congressional District of Pennsylvania brought to light last year and one that I referenced in my prior posts. It brings to light the problems of the voting system in Pennsylvania this past election including the change in voting practice which occurred by hierarchical decision and not by legislational decision as deemed the process by Constitutional review. I believe Representative Kelly’s argument deals with Article four of the Constitution.

    Representative Kelly’s argument explains my feeling of being disenfranchised despite my ability to vote in the 2020 election.

    I understand your view since you previously stated that I was not disenfranchised because I was able to vote; however, was I able to vote in a fair and free election? (Should I refer you to the recent election in Myanmar/Burma?)

    You down played all of the challenges to the 2020 election. You as so many stated that there was no merit to the cases, however, the US Supreme Court has decided otherwise.

    I wish that the US Supreme Court had listened to these arguments earlier and possibly the riots of January 6 would not have occurred.

    Maybe you should rethink your views and try to find a common ground and understand how nearly fifty percent of the populace feel negated.

Leave a Reply