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How might the Supreme Court respond to Texas Attorney General Ken Paxton’s lawsuit contesting the results of the election? Why did so many House members and state attorneys general file amicus briefs in support of the lawsuit? Is Paxton’s legal effort just a political stunt? On today’s episode, Sarah and Steve are joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review—for the breakdown.
Show Notes:
-Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin.
-106 House Republicans sign amicus brief supporting Texas lawsuit and Chip Roy’s tweet thread explaining why he will not join Texas’s lawsuit.
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It seems regrettable to me that so many people, including, so far as I can tell, every single member of the Dispatch, treating the Amicus as if it is synonymous with the lawsuit. David, for instance, gets mad at the Amici for not respecting the problems with standing.
The Amicus does not address standing. David conflates the two, and then attacks Congressmen for a position they do not claim and most do not hold.
This is precisely why we have amici; bad facts make for bad law, and bad litigants worse. In order to limit the harm, we let people who want a debate about principles make their points without suggesting guilt by association with the rotten parties they’re aligned with for the purposes of that point.
I’m not suggesting that the Amicus is awesome, but it is vastly less bad than the lawsuit and avoids 9/10 of the problems that David and Sarah raise with it. I’m disappointed by the analysis that seems to work on the basis of condemning people for which team they’re on rather than for the positions that they take.
David, Sarah: Am I reading this correctly? All justices denied cert; seven denied on a procedural grounds. Alito and Thomas would have heard the argument (and called their bluff) then thrown it out on its ear with a very spicy opinion. I would hazard a guess the opinion would focus on 1) the merits of the argument and 2) using the court as a political cudgel and 3) telling the executive and legislative branches to act like adults and do their job, instead of throwing it to the courts to (three would have been my fervent hope, not actual expectation)