“Naw Dawg” The Sequel

The Supreme Court on Friday declined to hear Texas Attorney General Ken Paxton’s lawsuit contesting ...

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The Supreme Court on Friday declined to hear Texas Attorney General Ken Paxton’s lawsuit contesting the election results in four battleground states, ruling that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” What does the court’s order mean in plain English? Should the justices have said more? Why did Justices Alito and Thomas issue a separate statement? “The bottom line is all nine justices rejected this case,” David explains. “Seven clearly for one reason, two for any number of additional reasons that they didn’t specify.” After breaking down the Texas lawsuit, Sarah and David discuss Trump v. Wisconsin, Bush v. Gore, the counting of the electoral college votes, and what options President Trump might still have to contest the election. They wrap things up by answering some listener mail about the LSAT.

Show Notes:

–Arizona v. California dissent, Supreme Court’s Friday order on Texas lawsuit, Trump v. Wisconsin, Bush v. Gore, Bush v. Palm Beach County Canvassing Bd, 3 U.S. Code § 15.

See omnystudio.com/listener for privacy information.

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Comments (52)
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  1. Avatar photo
    Billehrich85

    I'm with the seven on the Supreme Court. It says the Supreme Court shall have original jurisdiction. I take this to simply mean that no other court may hear the case before SCOTUS. I do not see it as mandating that SCOTUS take the case. In no other case is SCOTUS mandated to hear anything. Is SCOTUS not allowed to simply swipe away frivolous lawsuits brought by states? In Missouri, you're guaranteed your day in court at the trial level. Does the Constitution guarantee your day in Court if it goes straight to SCOTUS? I don't think so.

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    Madison Burke

    I keep hearing David and Sarah talk about “listener mail” on this podcast, but don’t see email addresses anywhere here or on the website to be able to ask questions. Are people just DMing them on Twitter? Or are they referring to questions left in these comments as “mail”?

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    1. Adam

      I was wondering the same thing. All I can find is the "pitches" email address.

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  3. Tom O.

    I'm one of those chumps that got the highest score on the Texas bar exam and gave a speech at the swearing in ceremony. I'd like to take offense at Sarah calling me a loser, but I have to admit that she's right. People like her, who put in just enough effort to pass, are the real winners of the bar exam. I bow to her prowess. I wasn't actually trying to get the high score. I just have an intense fear of failing, so I wanted to pass with a good cushion. Cushion accomplished.

    My first thought after the Chief Justice of the TX Supreme Court called me to deliver the news was that I should have golfed more. That day at work, I got made fun of about as much as I got congratulated.

    Humblebrag over.

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    PaulH

    I thought the discussion of the Wisconsin case was good and agree that it was properly decided; However, I am not convinced that the "manner" versus "method" distinction is textually or historically well-grounded. And I think there are still important open issues, particularly with respect to the PA case.

    With respect to Wisconsin, it seems clear to me that the legislature delegated power to the WEC. As there is no apparent "no-delegation" doctrine in the Article II grant of power to the state legislatures, that action seems to pass muster.

    However, in PA, the legislature passed very clear rules regarding when ballots needed to be received in order to be counted. The PA Supreme Court agreed that those rules were very clear. But it over-ruled those statutes based on its interpretation of a very vague PA constitutional provision. I don't this case resolves whether a state SC can use a state constitution to limit the power granted to the state legislatures by Article II. In other words, it is not clear to me that a state SC has the power to define the "methods" for an election if the legislature has already exercised that power.

    To be clear, resolution of that issue would not impact this election (even in PA), but it could be relevant in the future -- it is unfortunate that SCOTUS did not take this issue up in October when it was presented.

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  5. Jeff B

    I'm super confused about the Sarah/Alito/Thomas position on the Texas suit. It seems like two completely separate concepts are being conflated - jurisdiction and whether the court has to accept a filing under Rule 7? A state court has jurisdiction over basic tort claims. But, if my sheepdog files a complaint suing God because he has skin allergies, the state court can certainly dismiss it for want of standing or any other fatal defect. Why would the Supreme Court be compelled to address the merits of a frivolous claim just because it has general jurisdiction? Rule 7 doesn't require them to hear anything. It's entirely discretionary. It's basically just a dismissal. No? I just don't understand this at all. What if Texas simply didn't pay the filing fee? Would the Court have to accept the filing and hear the case because they have jurisdiction?

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      Dan

      I, for one, would love to see either Sarah and David take on your sheepdog's case in a mock trial; OR, would love to see the actual SCOTUS take that case on as a mock trial via Youtube or whatever network to show how Americans how it actually works. That would be amazeballs.

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      Cornelius O’Brien

      I understood it as pure technicality. Because the Court has original jurisdiction on actions between the states, they must accept the filing then they can dismiss under Rule 12(b)(1) or 12(b)(6).

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      1. Jeff B

        But, why "must" they accept the filing? Rule 17 literally doesn't require them to accept anything. It's discretionary (even if they have jurisdiction)... "The Court thereafter may grant or deny the motion, set it for oral argument, direct that additional documents be filed, or require that other proceedings be conducted." None of this has anything to do with jurisdiction, original or otherwise is my issue

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    Chris

    Happy Bill of Rights Day! I am disappointed we didn’t get David’s hot takes on the Bill of Rights, as he mentioned back on Constitution Day we would get today. Can we please devote a section on the next pod to doing so?

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    Brett S

    Hey Dawgs! Non legal, fan of the podcast here trying to understand. May use wrong terminology so here goes...

    #1 - So WI Judge could have dismissed the case because an individual cannot sue a State per 11th Amendment? But Judge instead argued a State is in charge of interpreting its own laws therefore federal court cannot step in?

    #2 - But didn't David & Sarah later say that federal courts "stepped in" during the 2000 Florida election suggesting one thing happened for Bush and another for Trump?



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      Jason Gibson

      As far as I can tell the court didn't really "step in". The Gore campaign could have continued their fight if they were able to prove that Florida law did not require the votes to be completed by that deadline.

      This pod helped me get a better "non-legal" citizen view of the decision. I think the court was right that the florida supreme court allowing different counting standards in different counties was a violation of the equal protection act (which I didn't know was 7-2...learned that today). But the remedy was to stop the count which seems correct to me brett that this was a violation of allowing a state to interpret it's own laws

      It would seem to me is that the court should have kicked it back to the Florida Supreme Court and instructed them that there must be a uniform counting standard.

      The decision of the court was based on their not being enough time. (this was around safe harbor day I think we heard in another podcast)

      So this non-legal brother Brett says that what you noticed was right. Bush v. Gore IN THE REMEDY violated the states ability to interpret it's own laws.

      However those on the left who say that the supreme court "stole" the election are not being complete in their analysis.

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  8. Afan

    You mentioned this in the last episode, and then again this time, that per curium opinions are non-precedential (or at least less cited as precedent). I've never heard that before and haven't been able to find anything on it online. I'm not a lawyer, so I definitely defer to you guys, but I was hoping you could provide a cite, or somewhere I could do some reading about it, because it seems interesting that they wouldn't be,and I would love to look into it more.

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  9. PopsBig6

    Oh, wow! Your section on LSAT and studying for the Bar Exam brought back memories of a different sort. In my former life, I was a paramedic. We took 2 tests in order to be certified: physical skills and a written general knowledge exam. To psych myself up for testing, I would observe all the medics coming through our main hospital ER dropping off patients. All services have a few knuckle-draggers in their ranks. I would look at them, and tell myself, 'If they can pass, I've got this!' We would encourage others who were stressed about their upcoming written exam in the same way. 'If I can pass it, so can you.'
    Not nearly as heady as a Bar Exam, but that chat brought back memories of clearing the One Hurdle to get to the next level of your profession.

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  10. Avatar photo
    S.Scholl

    First, I have to say that I'm an enormous fan of the pod, but I need to say this as an audience member and admirer. I need the law school discussion to take on a different tone. I went to a small third-tier law school in the middle of the country. My classmates and I have gone on to fill the halls of state courts, prestigious firms in the Midwest (and other places too), county offices, elected positions, local start-ups, and vital (vital, I say!) practices in rural America. That contribution is completely ignored by our otherwise very lovely and genuine hosts. It is not okay to advise everyone to steer clear of law school if they don't get into a top 25 school. Yes, there is a conversation about what someone's expectations should be at that level, but I haven't heard that full nuance yet. I'm deeply proud of the legal support we offer people in our communities. We won't be the lawyers interviewed on the networks, but we touch the lives of Americans. In fact, we often hold the keys to changing peoples' lives in the most concrete ways and we do so while being good neighbors and friends. Please, please, reconsider the message you send to listeners who were not lucky enough, by resources, or birth, or opportunity, or mental or emotional support from family and friends, or sheer intellect, to get into a the elite law schools in the country. It doesn't mean that what we have vastly less to offer. And I would, without any hesitation, puts some of my professors up against those at any top 25 law school any day. Now if you want to have a conversations about how smaller non-elite law schools can best serve the interests of their students and communities, I'm here for it. Thanks for reading.

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    1. Avatar photo
      Jon Paschal

      I read your comment before listening to this episode, so I expected something relatively explicit about avoiding law schools outside the top 25. What I heard was 1) advice from Sarah about how to get a good score on the LSAT with a little something thrown in about different approaches, depending on whether your goal is scoring in the 150s or 160s or in the 170s and 2) David stating that the quality of law school opens additional doors (something that doesn’t strike me as controversial), but on the way to his larger point that ultimately, the quality of law school is less important than your professional conduct after graduation.

      Maybe they disparaged non-top 25 law schools in another podcast, but I didn’t think this was overly elitist, in spite of the fact that these two clearly killed the LSAT and both attended Harvard Law School.

      By the way, I say all this as the proud father of a son who graduated from a non-top 25 law school and as someone who agrees with everything you said about the contributions to society of people like you and my son.

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        S.Scholl

        The law school convo is an ongoing one on Advisory Opinions. They've covered the topic in several episodes now and much of what they have to say is smart advice for people who want to practice law in a particular way or have visibility on a national/semi-national stage. I simply thought the discussion over the last few months has lacked a more generous perspective on why and when people should find a legal education, from anywhere, valuable.

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          Jon Paschal

          I guess some of that is inevitable given the orientation of the podcast and the experience of the hosts, but I agree that those of you in the trenches are the ones actually ensuring average Americans are afforded the Constitutional rights the Supreme Court has recognized. You have my respect!

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      Ethan Cordray

      Well said! David and Sarah certainly both have the elite-school perspective, and it can get a little echo-chambery. If one isn't interested in law school as a ticket into the Ruling Class, but rather as simply a ticket into the normal legal profession, then the math is a whole lot different.

      Go to a school that you can afford, preferably one you can get a good scholarship to, and which works with your life goals (e.g. living close to family, meeting lots of cute girls in your own religion, etc.).

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