Supreme Court Dissenters Did Not Support Texas’ Cause Of Action

The Supreme Court on Friday, December 11th, made history by deciding, without delay, that they would not hear the case of Texas v. Pennsylvania, Et. Al., which stopped the case permanently. The State of Texas, on behalf of all of its citizens, and to the amazement of a great many of them, claimed widespread voter fraud in the 2020 Presidential election. 

Despite the constant Tweets from President Trump regarding his confidence in a favorable decision by the 6-3 conservative majority in the Supreme Court, most legal scholars predicted that this immediate rejection of the petition by Texas would occur. 

The Justices voted 7-2, with the entire order being just one page, leading some individuals to believe that two of the justices might have ruled for Texas in this action. We explain below why this is not the case.

The entire majority opinion reads as follows:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Justice Alito and Justice Thomas both dissented, but only on procedural grounds, with Justice Alito’s statement stating as follows:

In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction… I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.


It is clear from the dissenting opinion that Texas’s case would have failed by a 9-0 vote even if a hearing had been granted. According to a national poll released by Quinnipiac University on December 10, 2020, 38% of individuals questioned believe that there was widespread voter fraud in the 2020 election, despite the lack of evidence with respect thereto.[1] 

What is Standing?

Just after midnight on December 12, 2020, President Trump tweeted the following:

So, you’re the President of the United States, and you just went through an election where you got more votes than any sitting President in history, by far – and purportedly lost. You can’t get “standing” before the Supreme Court, so you “intervene” with wonderful states… that, after careful study and consideration, think you got “screwed”, something which will hurt them also. Many others likewise join the suit but, within a flash, it is thrown out and gone, without even looking at the many reasons it was brought. A Rigged Election, fight on!

President Trump may not understand the legal concept with respect to “standing,” which is certainly understandable. Most lawyers learned the term in our first year of law school. 

The 1992 U.S. Supreme Court case of Lujan v. Defenders of Wildlife (“Lujan”) established three elements that a plaintiff must meet in order to establish “standing and have their case be heard in Court. [2] These elements are as follows:

  1. the plaintiff must have suffered a concrete and particularized injury;
  2. the injury must be fairly traceable to the defendant’s actions; and
  3. there must be a substantial likelihood that the plaintiff’s injuries would be redressed by a favorable decision. 

It is clear from the dissenting opinion that the two justices did not consider the third requirement to be satisfied. Texas’s lawsuit was an effort to “enjoin Defendant States’ use of the 2020 election results for the Office of the President to appoint presidential electors to the Electoral College.”[3]

Granting this “prayer for relief” would have been the most judicially active role the Supreme Court had ever taken in an election decision. Ruling in Texas’s favor to allow a hearing would have, in the opinion of some scholars, significantly reduced the legitimacy of the highest Court in the land. 

Will History Repeat Itself?

Since the election of President Trump, historians have compared his political strategies to that of Adolf Hitler.[4] Hitler’s rise to power, however, differed from President Trump’s. In the German run-off Presidential election of 1932, Paul von Hindenburg won 53% of the votes and Adolf Hitler won just 37% of the votes. Hitler was still able to rise to power despite this when Hindenburg was convinced/coerced to name Hitler as German Chancellor. Hindenburg died in 1934, and Adolf Hitler was appointed his successor. 

The 1932 election was the last free election in the Nazi era. Shortly after Hitler’s gain to power, the Reichstag (the historic home to the German Imperial Diet) was burned down, and Germany was sent into national chaos. Hitler blamed the communists in his country for the burning of the Reichstag and used this event to solidify complete control by the Nazi party. In the election of 1933, the Nazi party was the sole party on the ticket, and the German Courts did nothing to stop this.[5]

Many of the tactics used by President Trump in the 2016 election and after have mirrored tactics used by Hitler during his rise to power in the 1930s, such as unfounded attacks on the media, the use of ethnic groups as scapegoats and past administrations to pin blame for the country’s problems, and the emphasis on returning the country to “greatness.” For a more in-depth comparison of these tactics, read the recent article by Jerry McCreary, Ph.D. entitled Trump: America’s Hitler?[6]

It seems like the United States has come eerily close to the burning of the Reichstag, with over 100 Congressmen and women who signed on to support Texas’s action in an attempt to have the U.S. Supreme Court allow the Trump administration to oust the incoming Biden administration. What if six of these Congressmen and women had been nominated and approved to be on the Supreme Court, or if Donald Trump had “packed the court” by nominating 10 of them to serve, and the Senate had approved them. Would history have then repeated itself?


[1] National (US) Poll – December 10, 2020 – 60% View Joe Biden’s 2020 Pres | Quinnipiac University Connecticut

[2] 504 U.S. 555 (1992)

[3] Plaintiff’s Motion for Leave to file Bill of Complaint

[4] Pope Francis may have been drawing a similar comparison in his new book Let Us Dream: The Path to a Better Future, where he lamented “I am reminded of the 1930s, when some democracies collapsed into dictatorships seemingly overnight.”

[5] Voting in the midst of Nazi terror | Germany| News and in-depth reporting from Berlin and beyond | DW | 05.03.2013

[6] Trump: America’s Hitler? – The Berkshire Edge

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