By Howard J. Warner
\nAmerican Thinker<\/p>\n
Friday evening the United States Supreme Court decided to not take the Texas lawsuit against four states over their application of presidential election law.\u00a0 The Court only mustered two justices in favor of taking the case:\u00a0 Samuel Alito and Clarence Thomas.\u00a0 The argument against hearing the case was that Texas lacked standing<\/a> to sue Michigan, Georgia, Wisconsin, and Pennsylvania.\u00a0 Wow!<\/p>\n In a podcast titled \u201cIs Secession Upon Us?\u201d<\/a> Ben Shapiro argued against the Supreme Court taking the Texas lawsuit.\u00a0 He reasoned that under principles of federalism it would threaten our union if the sovereign states could dictate the laws of other states without resulting direct damages.\u00a0 This goes to one of the three principles of legal standing.\u00a0 His concern considers that in the future, the Court under a left-leaning majority would use this concept to attack more conservative states and their laws.\u00a0 His thinking is reasonable and likely figured into a rejection of the case by the seven\u00a0other justices.\u00a0 Yet, I doubt that this was the essential point in this case.<\/p>\n If we examine Marbury v. Madison<\/a> (1803), Chief Justice John Marshall set the principle of judicial review of congressional laws.\u00a0 He determined that Section 13 of the Judiciary Act of 1789 violated Article III of the Constitution by illegally enlarging the role of the Supreme Court from an appellate jurisdiction to one of original jurisdiction.\u00a0 His reasoning was excellent. \u00a0But one must also consider the political implications.\u00a0 President Thomas Jefferson, an ardent opponent of last-minute appointments made by the John Adams administration, would likely refuse to obey a writ of mandamus to sit Marbury as a judge, rendering the Court impotent.\u00a0 He reaffirmed the ideal suggested by Alexander Hamilton in Federalist No. 78 of judicial review as a way of avoiding a political risk and thereby strengthened the Court\u2019s power.\u00a0 In this case, standing was an issue because Marbury brought the lawsuit to the wrong court.<\/p>\n I believed that Justice Roberts would only desire a unanimous decision should the Court take the case.\u00a0 Interestingly the three Trump appointees, demonstrating independence, refused the case.\u00a0 Perhaps they saw merit in the Shapiro argument.\u00a0 Possibly they saw their ability to render opinions in the future being questioned by intervening in the presidential election on behalf of their benefactor.\u00a0 So, is there any standing in this case?<\/p>\n A simple reading of Article III Section 2 makes the Supreme Court the original jurisdiction in all cases of state-to-state actions.\u00a0 It allows original jurisdiction between citizens of different states.\u00a0 This is the root of the lawsuit claiming damages from illegally cast votes in a presidential election.\u00a0 There is no requirement to take any case and herein lies the real issue.<\/p>\n The argument fails to mention any corruption or irregularities that could be remedied by the Court<\/a>.\u00a0 When a court chooses to avoid a hearing, it can do so through\u00a0the principle of standing.\u00a0 Standing, according to the free legal dictionary by Farlex<\/a>:\u00a0“is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute.”<\/p>\n The three liberals, Sonia Sotomayor, Elena Kagin, and Stephen Breyer would fear allowing the conservative majority any latitude in this case.\u00a0 In such a case it usually takes 5 justices to hear the case.<\/p>\n The majority chose to avoid this case because it would be politically dangerous.<\/p>\n What is the purpose of the Supreme Court?\u00a0 It was intended to adjudicate the essential protections of our Constitution.\u00a0 A fair and honest election must be a part of this protection.\u00a0 We are a republic and select electors (that\u00a0ultimately choose the president), who are apportioned based upon the population of each state and jurisdiction.\u00a0 Failure to follow the Constitutional prescription under Article II section 1 that grants the legislatures the sole power to choose electors renders this clause useless and must be a permanent harm to citizens of different states.\u00a0 Failure to hear this case is an abrogation of the Court\u2019s role to protect our institutions.<\/p>\n As to Shapiro\u2019s concern that expanding federal power to examine the sovereignty of the states misses a reliable fact:\u00a0 In the future, the liberals will do so if it serves their interests, as they have expanded federal power in the past.\u00a0 They do not need any precedent as they create their own.\u00a0 After all, they ignore restriction in the Constitution when it is convenient.\u00a0 They will use any means to accomplish a desired result.<\/p>\n The Court did not have to dismiss the electors in the four states.\u00a0 They could have ruled that the procedures used to change election law in the four states was in violation of the clear wording in the Constitution.\u00a0 \u00a0Thereby, the Court would be reaffirming that provision of the Constitution.\u00a0 They could have demanded evidence of the harm.\u00a0 If they found insufficient evidence to change the election in each state, they could then leave the result.\u00a0 Should evidence be sufficient (and this is a high hurdle) to change the result of the election, they could apply the Court\u2019s 1892 ruling in McPherson v. Blacker to have the legislature make the final decision via electors.\u00a0 Then they restore the political responsibility of state\u2019s elected officials, which the most important aspect of federalism as a counter to expanded national power.<\/p>\n As to harm, it is not hard to see it.\u00a0 Any illegal vote damages those who\u00a0vote legally by distorting the outcome.\u00a0 This occurs in the presidential election and in the election of representatives to congress, where few votes might separate winners and losers (as in NY-22 in 2020).\u00a0 The Court can see harm when it chooses to do so since states\u2019 citizens are not third parties.<\/p>\n However, on Friday, the Court\u2019s majority demonstrated a lack of fortitude.\u00a0 For a divided and skeptical citizenry this is disappointing.\u00a0 An overwhelming majority of Trump\u2019s voters (and a large minority\u00a0of Biden\u2019s voters) feel this was a dishonest election.\u00a0 A judicial review would provide some comfort to those citizens that perceive real harm by the elitist establishment class.\u00a0 Failure to recognize this feeling and examine it increases their discontent and isolation. Now the battle cry of \u201cstop the steal\u201d will reverberate for years. \u00a0Perhaps there is fear that evidence of irregularities would demonstrate the real corruption of the establishment and swamp — the thirst for power.\u00a0 If this was a consideration, it is disgraceful!<\/p>\n Image credit: Picryl public domain<\/a>, image orientation modified.<\/em><\/p>\n