The Big Case Fallacy
Donald J. Trump offered these words after the U.S. Supreme Court issued its three-sentence long Order in Pending Case on December 11, 2020:
This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never even given our day in Court!
“Never even given our day in Court!” Wow! Mr. Trump and those who share his perspective on the election have been heard in state and federal trial and appellate courts more than 50 times. I believe he obtained an order, granting observers from both parties the right to stand closer to the counting. Otherwise, I think he and his have lost in every instance. And they have lost before judges appointed by Mr. Trump and other presidents, and before judges who identify with both parties. They have lost, plain and simple, because when your case depends on fraud or other irregularities, you must show up with credible, provable facts.
Article III, Section 2 of the Constitution, coupled with the Judiciary Act of 1789, grants (and imposes on) the Supreme Court original jurisdiction over cases between the states. The most famous “between the states” case was Arizona v. California, a 70+ year fight between the two states over Colorado River water.
Never has a state sued another state over the way in which it conducted its elections. Subject to certain minimum standards, we vest in the states the power and the duty to conduct federal and state elections. Why? States’ rights. And which party advocates most often for pushing power down, and letting states do things their way? The Republicans.
What did Texas tell the Court was wrong with the elections in Georgia, Michigan, Pennsylvania, and Wisconsin? A bunch of tomfoolery, claptrap, and what Colonel Sherman Potter called horse hockey. And, at that, mostly a rehash of claims which other courts – at all levels – tossed. (Here’s the Motion for Leave to File Bill of Complaint. Read it for yourself.)
And what did Texas ask the Court to do? Toss all ballots in the four states and let the state legislatures – all of which have Republican majorities – select the electors in those states. Never mind nonexistent legal or factual support for the requested relief. Or that none of the legislatures exhibited any appetite for ignoring their voters. And, finally, if voting and counting problems existed which justify tossing more than 20 million votes for president, how do the states handle the down ballot races? Including votes for some of the same Members of Congress who supported the Texas case. The absence of “scratch the surface” thinking amazes me!
So, how does this happen? Indicted Texas Attorney General Ken Paxton filed the suit. (He awaits trial on five-year-old state securities fraud charges, was the subject of a now-dismissed federal civil securities fraud suit, and has recently been accused of bribery by some of his line prosecutors.) Some people think he sued to help get a POTUS pardon. Maybe, but the suit and its circumstances scream: Big Case Fallacy. Don’t google, for this is my formulation.*
The Big Case Fallacy? I have practiced law for exactly 14,300 days. During those years I have seen lots of craziness, too much of which arises when people – parties, lawyers, and judges – find themselves involved in Big Deal matters. Examples:
Lawyers, on their own or because the client insists, sue in federal court when a faster, cheaper, better outcome awaits the party in state court. Why? They have a very important matter, which requires the attention of a more important judge, working for more money, in a fancier building. (Federal courts have limited subject matter jurisdiction but cases arise, often enough, in which the plaintiff can choose federal or state court.)
Everyone expects a case to get heard by the state Supreme Court or SCOTUS because it involves important people or facts, even though in many cases nothing about the case justifies high court review. (In the main, highest level appellate courts decide which cases they will hear. They focus on important, unresolved issues and also, with the U.S. Supreme Court, issues which the circuit courts have decided differently.)
Judges act crazy because everyone cares about the case on their docket. (The best example, here, is Judge Lance Ito, who presided over the People v. O.J. Simpson 25 years ago. Recall that the case involved trying to hold someone accountable for two brutal murders, and that the trial judge entertained celebrities in his chamber most mornings, before court.)
Without doubt, who gets inaugurated matters. That said, no basis existed for asking the U.S. Supreme Court to consider, much less grant, the relief sought by Texas. Shame on Texas for asking, and shame on the Attorneys General and R Members of Congress who popped up because, I guess, Mr. Trump’s supporters scare them.
Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.
I think Justice Holmes and I are making a similar point, from opposite perspectives, with a bit of overlap. He argues that the judiciary might not be at its best when it faces cases which matter greatly to the public, while I am suggesting that, too often, parties and their lawyers – and, sometimes, the judges – let interest in the case matter more than it ought to. (I cannot ignore the fact that I am hinting at the notion that I might be having a debate with Justice Holmes, one of my great heroes.)