Why the Supreme Court Will Not Decide For Trump

Mish

There are multiple reasons Trump's Supreme Court strategy will fail. Let's start with a review by Law.Com.

Trump's Pennsylvania Appeal Blasted Sky High

Please consider Third Circuit Rejects Trump's Appeal in Broad Challenge to Pa. Election by Law.Com.

Circuit Judge Stephanos Bibas said there was no evidence to support the campaign’s argument that, based on alleged restrictions on its poll watchers, and measures taken to allow voters to cure defective ballots, the election was tilted against it.  Bibas is a Trump appointee. The decision is non-precedential.

Bibas said the lawsuit only raises issues of state law and fails to raise any federal discrimination claims, therefore the lower court acted correctly in dismissing the lawsuit last week.

The campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes,” Bibas said in the 21-page ruling. “Calling something discrimination does not make it so.

I don’t want to pretend that, at the U.S. Supreme Court, it’s all law and politics has nothing to do with it … but you’re talking about a whole different scale here,” Duquesne Law professor Bruce Ledewitz, who focuses on constitutional law, told The Legal following Brann’s ruling. “He will be asking the U.S. Supreme Court to break all precedent, to find something where there’s nothing there, and to do what no other court’s done.

Actual Ruling Page 20 and 21

Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear. And earlier  lawsuits have rejected those claims.

Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold. The Campaign never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so. The Second Amended Complaint still suffers from these core defects, so granting leave to amend would have been futile.

And there is no basis to grant the unprecedented injunction sought here. First, for the  reasons already given, the Campaign is unlikely to succeed on the merits. Second, it shows no irreparable harm, offering specific challenges to many fewer ballots than the roughly 81,000-vote margin of victory. Third, the Campaign is responsible for its delay and repetitive litigation. Finally, the public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail. Plus, discarding those votes could disrupt every other election on the ballot.

Here is the full Ruling by the Third Circuit Court of Appeals.

Reasons Why the Supreme Court Won't Get Involved

  1. Election law is a state issue. Giuliani tried  multiple times in multiple states to make federal law an issue. He failed in every attempt. 
  2. Pennsylvania, Michigan, Georgia, and Nevada have all certified the election for Biden.
  3. Trump needs to succeed in not one case in one state, but in multiple cases in multiple states. The Supreme Court is likely to reject hearing cases on grounds they are moot. 

Point three is a denial of writ of certiorari because the case is moot, that is, the Supreme Court will refuse to take the case because decision will make no difference in the outcome of the election.

I commented on the writ of certiorari in Voters, Not Lawyers, Choose the President.

I do so again to discuss the Law.Com opinion as mentioned by the appeals court regarding the fact this is a state issue. 

Reflections on Media Bias and Trump's Strategy

Trump Cult Syndrome

Every day I am told the the Supreme Court will decide this for Trump. I have a huge collection of "just wait and see" bookmarks saved up.

Here's a typical comment from today.

The clear fact of the matter is Team Trump led by Rudy Giuliani presented and lost every case in ways practically begging the Supreme Court not to hear them!

And it was a Trump-appointed lawyer who issued this latest scathing blast at Rudy Giuliani.

Even still, the believers march on. 

Trump's legal team knew this was futile (or they are even more incompetent than I thought). 

That's why a number prominent law firms dropped out of these cases leaving the #1 lap dog, Rudy Giuliani dangling in the wind by himself.

Post-election, Trump's legal strategy is not to win and never was. The strategy is to pretend there is a case so the other lap dogs will continue to suck up the Kool-Aid working up the cult followers to a feverish pitch in hopes of casting doubt on the election. 

That strategy was arguably a success.

If you actually believe it's likely the Supreme Court will hand this election to Trump, please look in the mirror to see someone with TCS.

Mish

Comments (106)
No. 1-27
Mr. Purple
Mr. Purple

The simplest method of dealing with TCS victims, besides ignoring them (highly recommended), is to propose a wager.

Funny how they shut up after that. Seems they haven't lost all reason after all, at least where money is concerned.

Doug78
Doug78

And what if it does by chance? Should we buy or sell the market?

Carl_R
Carl_R

There is no reasonable way that the Supreme Court should even hear this, given that the only questions are questions of state law. The final say on Pennsylvania law should be from the Pennsylvania Supreme Court.

Sechel
Sechel

The Third Circuit court opinion in denying Trump and Giuliani was so well written and grounded in law and fact that there's not a prayer in hell the Supreme Court takes this up. Some will point to the more conservative nature of the court but the Third Circuit was entirely comprised of Republican appointees, one by Trump even. Too much is being made of whether a judge was appointed by a Republican or a Democrat. Were not talking abortion or going to Church here. We're talking basic law. Trump hasn't even met the bare minimum standard of arguing the facts and the law. His team is lucky it hasn't been hit with Rule 11 sanctions.

Casual_Observer
Casual_Observer

If the court takes up the case, it will only show that the Supreme Court is now a clown court.

Casual_Observer
Casual_Observer

TCS members don't realize their leader is a one trick pony. This says more about TCS members then it does about their leader.

Jay Bird
Jay Bird

There is another reason Trump keeps pushing doubt in the election he knows he lost. Trump is acting like a Televangelist. He set up a fund raising campaign to soak the TCS. All his big donors are gone but he can still make money from his uneducated base. He is not as rich as he claims to be. 75% of donations can go to his new political super pack which will be ran from his properties. The other 25% is going to his legal team (Giuliani). The angrier he can make his base, the more money he is making. Sad thing is his base is hurting from the pandemic and job losses and can't really afford to donate. Yet they still give to his lost cause.

Sechel
Sechel

I was waiting for this

Rbm
Rbm

He spent 3 million in Wisconsin to find 132 lost biden votes. Now thats a kick in the balls.

rum_runner
rum_runner

Mish - since you made the claim - what's a single racist statement Trump has made? I can name about four Biden has made in the last three months.

Realist
Realist

Trump appears to be stalling as long as possible, in the faint hope of "something" eventually happening in his favour. He doesn't care how stupid he looks (or his lawyers), because his cult supporters will still love him, no matter what. In the meantime, he can keep scamming the cult members for money.

However, this time, no one is going to rescue Trump. Not the Supreme Court, not daddy, not Putin, not Deutsche Bank, not organized crime, not anyone. He has lost the election, and he will spend the rest of his life denying it, by saying it was stolen, even though he doesn't have a shred of proof. Proof doesn't matter as his cult followers will believe him. He will be able to keep milking them with rallies, and calls for money, much like a televangelist (kudos to Jay for mentioning it earlier). Trump has become the opiate of the masses.

The 3 million he spent to find 132 more Biden votes wasn't his money anyway. His supporters are paying the tab.

brian henry
brian henry

Every one can vote and out of US faked voters can vote too as they can send the faked paper ballot via mails. If the people in prisons can get unemployment benefits, then they can vote too as it is easy than to apply for UI benefits.
Soon, any thing via mail can be used to defraud and cheat as there is no way to verify/valid the truth, correctness as senders have nothing to lose.
The absentee votes via mail will be promoted as the tool of cheating.
Unemployment benefits, foodstamp, Medicare, Social Security, all other forms of money and benefits will be defrauded and cheated. No way you can stop with the current law as perjury/penalty is a joke for homeless, illegal immigrants, inmates as they have nothing to lose.

Dodge Demon
Dodge Demon

Mish, after 4 years of Biden in the White House where will the NASDAQ and S&P 500 be in December 2024? Any good LEAP call plays?

Anda
Anda

In the US states can change their own constitution unconstitutionally, the judges overlook it, if people complain they get told it took too long for them to do so.

The US constitution has elected officials, including the president, that oversee the running of the whole country. The decision that body makes depends on its composition and majorities. If one state, unconstitutionally by its own constitution, sends representatives to federal level that are not fairly elected, they are able to tip the balance of majority, or at the least make federal decisions not representative of national will, so disenfranchising all voters.

That the federal supreme court would not consider this, would surprise me, but I guess you all know best how your country does or doesn't work.

LewisM
LewisM

Just for argument's sake, the Supreme Court never should have taken up Bush v Gore either, but they did. They never should have decided Bush v Gore the way they did either, but they did. That said, they probably will dodge this, but I wouldn't be surprised if they got involved - I don't trust the impartiality of the Supreme Court anymore.

Sechel
Sechel

This is why most of Trump's lawsuits will fail. It's called 'laches'. The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it.

JerryO
JerryO

SCOTUS wont touch this case. As the writer pointed out, this isn't a case about ideology. It is, at its heart, a simple case about federal election law. And, as the all GOP appeals Court panel pointed out, the case is merely repackaged State Law claims over which Federal Court has no authority. There is nothing subjective here. Nothing for Justices to disagree on on ideological grounds. The State Supreme Court ruled on the issues in question. There are no grounds on which to question those rulings. Game Over.

Tengen
Tengen

I can't believe so many people donated to Sidney Powell's fund. This conjures up old sayings about fools and their money.

Then there was that North Carolina guy who donated $2.5M to "True the Vote". Once he realized it was hot air he decided to sue them, seeking a full refund.

Webej
Webej

Missing the forest for the trees.

The point is not whether there was or was not demonstrable fraud or whether the CFR will get all their picks in a Biden cabinet and the wheels of justice grind in habitual ways.

The point is legitimacy, which like value, rests on subjective judgement. The elections were not conducted in a way that convinced people. Period. Full Stop.

People can blame and impugn the intelligence of the deplorables as much as they want, but the fact is that a large proportion of the populate remain unconvinced despite the unanimous media messaging. Hence, there is no mandate to rule with the consent of the governed. Force will rule the subjects instead.

That outcome could easily have been avoided by running elections in the same way that any number of other developed countries do. And there have been decades of advance warning.

Sechel
Sechel

Most of the dozens of lawsuits Trump and allies have filed can be described in one word, cavil. No way the Supreme court involves itself

Lance Manly
Lance Manly

What is amazing is this unprecedented army of lawyers and activists have come up completely empty handed given a difficult election with record turnout. You would think they could have found something interesting. At this point, as I understand it, the latest theory is that George Soros reanimated Hugo Chavez. Chavez then flew, Santa Claus like, from precinct to precinct on election eve with his trusty screwdriver to rig the voting machines for Biden. Do I have it right?

njbr
njbr

Diaper Don is on Fox News this morning talking to the moeny honey about “big massive dumps”.

Evidence please!!

Show us the pampers, errr, papers.

njbr
njbr

A true sign of derangement is thinking that everyone is out to get you...

So far 38 cases, and counting, have been laughed out of court because when you stand in front of a judge you have to tell the truth and present evidence. Even Trump appointed judges are laughing at Trump's cases.

njbr
njbr

Burning down the house....

At a RNC event for the GOP candidates in GA....

McDaniel is being peppered with questions about the accusations about fraud.
One suggested that the voting machines counted votes that weren’t there.
McDaniel conceded- the audit did not show that.
Crowd did not like the response.

Another person asks- “Why should we vote in this election when we know it’s already decided?”
McDaniel responded- “It’s not!”
(This btw.. is the GOP’s worst nightmare in Georgia).

One person from the crowd yells out as McDaniel was speaking-

“Kemp is a crook!!”

(Brian Kemp is the GOP Governor and a committed Trump supporter)

McDaniel is now pleading with the crowd to focus their energy on the Senate race and promises of they will worry about Election fraud issues “later”.

As McDaniel wraps up her remarks she tells the crowd she will tell the President about how fired up the crowd was. The crowd erupts in a “Trump, Trump, Trump” chant.
Remember she was here in support of Perdue and Loeffler.

CA2020
CA2020

My wife had her first exposure to a friend that has TDS, and she was shocked. I on the other hand I read the crazies on ZH and here, so I have heard some of the conspiracies.

In a 20 minute conversation the following unsolicited issues got brought up.

Covid is fake.

She doesn't wear a mask or do social distancing because well Covid is fake.

She won't take a Covid vaccine because Bill Gates has made it and it will change her DNA.

She will take the "Trump Vaccine", why she would do that when it is "fake" is beyond my understanding.

She is hosting a large Thanksgiving gathering with no social distancing and no masks.

Dem leaders kill babies and drink their blood.

The election was rigged.

The voting machines are from George Soros and changed Trump votes to Biden votes.

There was much more, but this post will be long enough as is.

The whole conversation this lady was absolutely angry, full of rage. She told my wife to stop arguing with her, to which my wife replied that she was not arguing with her (I was listening and she made no arguments, just asked if she was going to take the vaccine when available)

TDS peeps are going crazy, literally batshit crazy. Republican leadership needs to step up and put an end to this nonsense. We are losing family and friends to this literal insanity.

TDS peeps are informed in talking points to defend their craziness. When my wife would attempt to question anything she had some insane, fake, made up, counterpoint. You cannot have a debate with someone who just makes shit up.

Jeff Larry
Jeff Larry

"I have a huge collection of "just wait and see" bookmarks saved up."

Why? To what end? So one can say "I told you so", once this has played out to its end, to people who will only harbour grater resent for it? How is this helpful? I fail to see how this accomplishes anything but massaging delicate egos.

I'd suggest instead to direct that effort towards better writing, or to narrowing the gaping chasm that separates your people and threatens to undo the USA we grew up admiring.

Stop throwing gas on the fire.

HenryV
HenryV

“C’mon man! I stole this election fair and square!”


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