Pennsylvania – Don’t Assume Alito Giving Until 12/9 To Respond To Emergency Application Means He’s Letting It Die On the Vine William A. Jacobson
More likely, Alito’s action means he and some other Justices take the matter seriously, and plan to rule on the merits once the opposition is submitted.
On December 1, 2020, we covered an emergency application for injunctive relief sought to halt any further actions by Pennsylvania to certify the election, Pennsylvania: Emergency Injunction Sought From SCOTUS To Halt Any Further Certification Actions.
See that post for background on the case, and my admittedly pessimistic assessment.
Another Emergency Application, substantially similar, was filed yesterday, December 3. That made no sense to me, why would they file twice?
I spoke to an attorney handling the case, and the explanation is that the first filing took place prior to a stay being sought from the Pennsylvania Supreme Court, which issued the decision at issue. Out of concern that the US Supreme Court might deny the stay on the procedural ground that a request had not been made to the state court, the attorneys waited for the PA Supreme Court predictably to deny the stay, and then refiled on December 3.
According to the Supreme Court docket, Justice Alito, who covers the Third Circuit, gave Pennsylvania and the other Respondents until next Wednesday to file responses.
Response to application (20A98) requested by Justice Alito, due Wednesday, December 9, by 4 p.m.
There is a lot of chatter that such a long period of time, under the circumstances, must be a way for Alito to let the application die on the vine, that the application would be “moot” or otherwise pushing it off to make meaningful relief impossible. Certainly, we can’t read Alito’s mind, but if there’s anyone on SCOTUS I don’t worry about playing such games, it’s Alito (and Thomas, too early to tell for Gorsuch, Kavanaugh, or Barrett).
In my mind-reading exercise, Alito giving the respondents’ enough time to fully prepare opposition likely means he and some other Justices take the matter seriously, and plan to rule on the merits once the opposition is submitted, rather than limiting their ruling to emergency injunctive relief. They could treat the Emergency Application as a Petition for Certiorari, accept it, and rule substantively. The few days gives the Justice enough time to prepare their respective opinions — it’s not like they really need briefs from the respondents to know the counter-arguments.
What that ultimate merits ruling would be remains to be seen. In my prior post, I was very pessimistic that SCOTUS would take the case or rule in a way that would change the state result. That’s not to say that what the PA Supreme Court did was right — it wasn’t and that PA Court has acted more like a litigant throughout this process. Mark Levin’s Landmark Legal Foundation has filed an Amicus Brief laying out the defects with the PA Supreme Court ruling.
The issue I keep coming back to is what is the remedy. SCOTUS could rule that the non-absentee mail-in votes were unlawful, and order that PA certify the vote and appoint electors based on the lawful vote only. That seems to be the only remedy to grant relief that works under the timeline for selecting the electoral college. (Denying the Application of course also is a possiblity.) Kicking the matter over the the PA legislature to select electors could be an alternative though less timely, but again, it would require disqualifying the mail-in vote as unlawful.
Would SCOTUS take such a step? It would mean that millions of voters who honestly thought they were lawfully voting would not have their votes counted. Don’t think for a second that the Justices don’t understand the political implications or are not sensitive to them.
I think we’ll find out one way or the other, but I don’t think Justice Alito is playing games to allow the case to die on the vine.
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