1/ Lot’s of cyber noise about today’s SCOTUS opinion. My thoughts on one aspect. The opinion highlights what lawyers refer to as “prudential” considerations. The Court ruled on the narrowest grounds - standing, and declined to opine on the merits of the claim.

2/ This is as it should be. SCOTUS should be careful about opining on issues that go the the core of our democratic traditions, whenever possible, without benefit of full briefing in the lower courts and full briefing in SCOTUS.

3/ The statement by Alito and Thomas was similarly narrow in declining to address the merits. It was NOT a dissent. These two Justices instead found that the court’s original jurisdiction was properly invoked.

4/ Significantly, Alito wrote that he would “not grant other relief.” Translation: even if the court had allowed TX to file the Bill, he and Thomas would not have voted to grant the injunction requested.

5/ The requested injunction would have, in effect, undone the certifications in certain battleground states.

6/ The standard for granting an injunction is that the moving party has a likelihood of prevailing on the merits. By pointing out that they would not have enjoined the certifications, Alito and Thomas did not believe the suit was likely to prevail had it proceeded to the merits.

7/ Even more, SCOTUS is also hesitant to enter into the “political thicket;” that is, SCOTUS defers to the citizens to work out their own politics.

8/ one final concept may have influenced SCOTUS and did in fact influence some lower courts: latches. This is an equitable doctrine that stands for the idea that if a party waits too long to file a claim, it is unfair to hear the matter...

9/ ... because the remedies now available will prejudice the other party. Here, these constitutional claims about the various state’s election rules could have been made months ago. The only remedy left now is for an unelected court to overturn an election.

10/ I suspect that the substantive issues will reach SCOTUS again in the years to come, and it will decide on the merits. The law here is a complicated mix of state law and constitutional law. SCOTUS will have some difficult lines to draw.
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