All eyes turned to the Supreme Court on Friday after a final round of briefs were submitted in Texas’s unprecedented and widely panned effort to upend President-elect Joe Biden’s victory, teeing up the justices to take action in the case.
The consensus among election law experts is that the court will roundly reject Texas’s extraordinary request to invalidate Biden’s win in the four key battleground states of Pennsylvania, Michigan, Georgia and Wisconsin.
With the filing of its reply brief on Friday morning, Texas cleared the way for the court to issue an order on its request for a preliminary injunction, perhaps later that same day. Some court watchers expect the court will act no later than Sunday, ahead of the next day’s Electoral College meetings to formalize Biden’s win over President Trump.
The Texas brief Friday came after the filing of amicus briefs from dozens of state attorneys general who carved out positions on either side of the dispute, 106 House Republican members who are backing Texas and a request by Trump to join the Lone Star State as a party to the lawsuit.
If legal experts’ predictions are borne out and the court denies Texas’s bid, one variable that could affect the timing of such a move is whether any of the nine justices plan to write a statement accompanying the court’s order.
In two fairly recent instances, Justices Clarence Thomas and Samuel Alito, two of the court’s most conservative members, expressed disagreement over their colleagues’ dismissal of a pair of disputes that pitted states against each other, noting their belief that the court is obligated to hear interstate suits.
“Although we have discretion to decline review in other kinds of cases ... we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States,” Thomas wrote last term in a statement of dissent that was joined by Alito and that echoed their dissent from a similar 2016 denial by the court.
Alternatively, if the court opts to deny Texas’s request, it could do so in a one-sentence order.
The justices took such a move earlier this week when they tossed a request from Trump-allied Pennsylvania Republicans to nullify Biden’s certified victory in the Keystone State — a state Biden won by more than 81,000 ballots.
“The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied,” read the unsigned order siding against Trump’s allies, with no noted dissents.
Election law experts who accurately predicted the Pennsylvania Republicans’ emergency application would be rejected by the Supreme Court said the Texas case will suffer a similar fate.
“I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court,” Rick Hasen, a law professor at the University of California, Irvine, wrote on the Election Law Blog. “This new one from the indicted Texas AG Ken Paxton … probably should win that prize.”