The Dispatch Podcast - Mess with Texas?

Episode Date: December 11, 2020

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Sarah Isger, joined by Steve Hayes. And our special guest today is Ilya Shapiro. He's the Cato Institute's director for their Center for Constitutional Studies. He also has a book that has come out recently, Supreme Disorder, Judicial Nominations, and the Politics of America's highest court. Because this week, I know it's not advisory opinions, but we've got to talk about the Supreme Court. Let's dive in, Ilya Shapiro, thrilled to have you on. We'll get to why you're wearing a Hawaiian shirt later. But first, so the President of United States tweeted this morning,

now that the Biden administration will be a scandal, plagued mess for years to come, it is much easier for the Supreme Court of the United States to follow the Constitution. and do what everybody knows has to be done. They must show great courage and wisdom, save the USA. What do you think the Supreme Court's actually going to do in this case? Before we even get to the details of the case.

Well, first of all, Sarah, good to be on the flagship dispatch podcast, been promoted, done advisory opinion, the remnant. Finally, the big cahuna here, speaking of my Hawaiian shirt, and I have many, by the way, for my sojourn here in Daytona Beach, the rest of the month with my family because the remedy for 2020 is apparently spring break 1984. But anyway, getting back to the question at hand, I don't think the Supreme Court will do anything with this. I think they will decline to take up what's called an original jurisdiction case. That is when a state sues another state that goes directly to the Supreme Court and the

court can decide whether to take up the case. In fact, in theory, the Supreme Court is the trial court when states sue other states. And what happens then, it's not like we have a jury trial with the justices there in the marble palace or what have you. They appoint a special master who takes evidentiary hearings, et cetera, et cetera. But anyway, that's all too much in the weeds because this case, I think, is more of a political or PR statement than it is a real lawsuit. I mean, it's better done. The T's crossed and the eyes are dotted. We don't have all sorts of crack and related typos and, you know, improper filings and so forth. But I can't see the Supreme Court taking this up. Is there any merit to the standing issue of why Texas gets to sue Pennsylvania,

Michigan, Wisconsin, and Georgia? Yeah, it's a dubious standing theory. In fact, in other circumstances, Texas would be foremost on the other side saying, why are these other states trying to tell Texas how we run our elections or whatever. So it definitely is an unusual procedural posture. That's probably why the Texas Solicitor General, Kyle Hawkins, his name does not appear on the filing. That's important because the SG, the Solicitor General for the state, is supposed to represent the state before the Supreme Court and other prominent tribunals. And here, the embattled Attorney General Ken Paxton had to hire a, quote-unquote, special counsel to do this. So very unusual scenario. A bunch of states have jumped on that, of course, and now over 100

congressmen have filed an amicus brief. But this is, as I said, more of a political posturing or a press release. I mean, for Ken Paxson, for the Texas AG, it might be, you know, trying to ask for a pardon from the president for that matter. You know, I don't want to question people's motives too much, but just on the legal analysis, you're right. The standing is, you know, before you even get to the merits of whether the swing states' electoral processes are corrupted, one state simply cannot sue another state for how they do things. I would just say as a Texan, by the way, that it is a foundational value that other states can't tell us what to do. Like, don't mess with Texas as kind of premised on that whole thing, Steve. Yeah. Can we take a step back a bit? Can you,

Ilya, can you just tell us, what is Texas, what's their argument? What's the case here? Well, there are four states that are being sued, and I'm not about to name them because I'm just sure to leave out one of them. They're all swing states, like Rick Perry trying to name cabinet departments, but speaking of Texas. But the theory is that there are defects in the way that various electoral procedures were enacted and implemented.

with this election, notably that state executives or state judiciaries changed in kind of a moving target last-minute situation because of the pandemic, because of late lawsuits and what have so the judiciaries and the executive branches of those states change their various procedures in violation of the constitutional provision that says state legislatures dictate the time, place, a manner of their elections. And so Texas is saying that because of those violations of state law, you know, changing the procedures, not through, not legislatively, that hurts Texas because those swing states, their, you know, their electors now go to Biden, whereas otherwise they would go to the candidate that Texas supports Donald Trump. And what's the best evidence of this?

Did this, in fact, happen as Texas alleges? I mean, it could well be that some of the claims of how rules were changed in different states were done improperly, either as a matter of state law, state constitutional law. There's a very serious, meritorious claim in Pennsylvania in which the Supreme Court a couple of weeks before the election, you might recall, it seems like a lifetime ago. We've gone through several lifetimes this year, I think. But anyway, before the election, the court's deadlocked four to four on whether to stop the Pennsylvania Supreme Court's rewriting of its election laws to accept ballots that were

received after the election, and even those which were not postmarked, and had the election come down to just Pennsylvania and had the number of ballots in play, apparently is about 10,000 or so, had that been greater than the margin in Pennsylvania, then it would have been a Bush v. Gore type situation regarding that kind of claim. But because there are so many different kinds of claims across multiple states, you know, at this point, it's too little too late, which actually brings in a separate doctrine called latches. I don't know why everything has to be complicated with lawyers, but there's a doctrine called latches, L-A-C-H-E-S, which means that you can't kind of get a second bite at the apple. Sue beforehand, get all this stuff clarified beforehand. Don't wait to

see whether the outcome pleases you and then try to get it reversed. So undoubtedly, there are some tweaks to state law, which if I were a judge, I might say that contravenes either the state constitution. Maybe the federal, that's a more complicated issue about when do federal courts intervene on state reinterpretations of their own law. When the state law changes, when are they so egregious that they rise to a level to a federal constitutional violation. But anyway, you know, regardless of whether there are any granular, meritorious legal claims here in any particular states, it's too little too late. They don't affect the tens of thousands of vote margins in each state. And so even though it's a close election, you know, the Supreme Court is not going to, you know,

Seeing that it's not going to offer the thermonuclear remedy of reversing the election or changing the state electors in the particular swing states, that along with standing, along with latches, all of these different reasons is why it is almost certainly going to not take up the case. And by the way, if it doesn't take up the case, it won't give its reasons. It won't go through what we've just kind of gone back and forth in a more legalistic detail, what have you, it'll just say, you know, declined to take up the case. But, you know, what's interesting, a reporter asked me yesterday what should happen. You know, there is an argument to be made that it might be better for the health of our republic going forward, or at least for the next four years, the perception of legitimacy, for the Supreme Court to take it up and unanimously then slap it down either on the merits or on standing or something. That might be healthier.

But I can't see the court. That's less likely than the court just not taking it because it doesn't want to play games in that way. is just one last simple question what is texas seeking to do here what what's the optimal outcome from the perspective of ken paxton or the 106 republicans in congress who signed on to this or the other states who joined what do they what do they make a specific request what are they actually trying to do they're asking the supreme court to rule that the electoral methods in these four states are constitutionally corrupted and therefore the state legislatures of these states

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Application times may vary, rates may vary. You mentioned that you don't think the court will take the case, but, and I think I would have agreed with you entirely when the initial case was filed by Ken Paxton, But we now have this brief from 17 states, led by Missouri, coming in as amicus, friend of the court, saying that the court should take the case. We have 106 congressmen. None of those really go to the merits. None of them would maybe in normal times even affect the Supreme Court taking the case. But do you think this time is different at all?

What, if anything, affected do those things have? Well, it's an unprecedented situation. So it's hard to, hard to know, really. I think the 16 states coming in that, it's 16 states, not just a couple, I think, is significant. I think it's 16 plus Missouri. Okay. So 17, sure. That might at the margin make it more likely that the court takes it up and, you know, says there's no standing or says it's a political question or something like that rather than just the one line. declined for lack of a substantial federal question, which is what the ruling, or not the ruling, but just the procedural decision might be. What's interesting is, I don't know if you saw this, because I'm not up on my latest advisory opinion podcast, unfortunately, but in addition to the amicus brief by the 17 states, there is a motion to intervene and to kind of become plaintiffs as well, and that is not joined by 17. I think that's only four or five at this

point. And so you can see there, so there are about a dozen states are happy to kind of issue effectively a press release saying, yeah, go Texas. But when the rubber meets the road of actually putting your name down as endorsing in full legal theory, many fewer. Which is kind of interesting to me because I think this whole thing came about because Ted Cruz offered to argue the Pennsylvania case, which he knew the court was never going to take. And so it was, like, I think, seen as this kind of brilliant no-lose press release by Ted Cruz. And so then the Texas case gets filed and all these states are like, ooh, we can do the same thing. And then all these congressmen said, oh, we can do the same thing. But I think it has a much more pernicious

effect as it snowballs down the hill and you have nearly half of the states and half of the Republicans in Congress validating this. I agree with that. And Ted, you know, Ted Cruz is. his press release offered to argue a case that, because he's a smart guy and knows very well how the Supreme Court operates, knew that there was no chance in hell that they were going to take that case. And so he could make that empty promise to argue it now a little more delicate sort of situation. But yeah, it's, again, it doesn't help not the legitimacy of our government of our election, but the perceived legitimacy, which is equally important because at the end of the day, you know, in such contentious polarized times with low levels of social trust, we knew that

whoever lost this election, a fair number of their supporters, was not going to accept the result and kind of keeping on fanning these flames. And in a sense, with the states and the congressman now getting involved, that steps up those, well, I'm mixing my metaphors, but anyway, the conflagrates even further, the damage to the perceived legitimacy, because at the end of the day, you know, having all these state attorney generals, even on the amicus brief, let alone the intervention, you know, get out there on this. That is, and rightly so, considered more serious than the crack in lawsuits and, you know, Rudy Giuliani's machinations and things like that. And just a shout out also. I mean, you know that Chip Roy is a friend of me and Scots,

And he is, and Scott's former boss because Chip Roy was Ted Cruz's former chief of staff. He is now in Congress. And he put out this long thread on Twitter about why he didn't join those 106 members of Congress about this lawsuit, even though he is, you know, a great attorney and a fan of the presidents, basically saying this lawsuit is meritless and I will not join it as a press release. And of course, the most predictable thing, right, he is being attacked for not being conservative enough and yada, yada. and it's turned into this real, I think, divide in the Republican Party, and I think will be for some time to come of which side of this fight you as a Republican we're on. Sorry, Steve. I think you were next step. No, no. I mean, just I'll add a little reporting to that in conversations that I've had since the House letter dropped with 106 House

Republicans signing on to this. It's very clear that there is a stark divide in the House Republican conference and that the people who, many of the people who signed on, and I I tried to get some estimate of how many this applies to, but a good chunk of the people who signed on understand fully what Ilya has just laid out here, that this is totally unsurious, that it's a silly legal argument, and they're doing it simply to appease the president and appeal to the base. And many of them did so in response to a letter that Representative Mike Johnson from Louisiana sent, in which he said, we will let the president know who's on this letter.

Not that he actually had to let the president know who's on the letter. I'm sure the president was very keen on finding out and was, in fact, making phone calls to some of these House members trying to get them to sign this letter. But my sense is that there is a growing sense this early that the letter may have backfired for some of those House Republicans because the people who are who didn't sign are furious at the way that this went down and pissed that the Republican conference is now being broadly is now being smeared with this association with something that is so sort of on its face ludicrous and at the point where and at the point where the Republicans came within a

whisker of taking back the house defying all expectations you know within you know five seats now you know given the couple of machinations there um yeah Actually, I wanted to ask you, Steve, since you've been doing that reporting, and I haven't gone through the whole list of the signers. I knew about Chip Roy, and I was heartened to see that because, yeah, you know, he just eeked out a narrow win. Well, broader than expected, but still fairly narrow win over Wendy Davis and, you know, is a respected, you know, thoughtful guy. But, but Steve, are there any surprises for you of who signed the letter or who didn't sign the letter? This was this was one of the things that everybody was texting and calling around

furiously. I think everybody was surprised that it was 106. You know, I think that there had been this behind the scenes scramble to get people to sign this, sort of started by this letter that Mike Johnson, newly elected vice chair of the House Republican Conference, had sent out saying, you need to get on this, we're going to let the president know who's on this. He did this with, this was not a something that was approved by House leadership. And then there was this sort of scramble behind the scenes to get people on board and hard pushback by the people who didn't want to sign. And right in the aftermath, it was texting with a number of members of Congress and others who we were all comparing our lists of surprises. And I would say the surprises for me, Kathy McMorris Rogers, who generally's cultivated reputation of being somewhat moderate, reasonably thoughtful, had been in leadership.

Michael Walts, who's actually congressman from Daytona Beach, right in your area. Somebody who worked for Vice President Dick Cheney has been thought of as a thoughtful, hawkish voice on national security issues, has been increasingly supportive of the president over these last couple months leading up to the election. Mike Conaway, Republican from Texas, who was at one time the interim chair of the House Intelligence Committee, if I'm remembering correctly. There were a handful of members like that. What was also surprising to me, Steve Scalise, is it number two in the House Republican Congress? The only member of leadership to sign, I think.

With Mike Johnson, who pushed the letter, who's now the vice chair. Very interesting to me was a Kevin McClure. McCarthy was not on the letter. We've seen Kevin McCarthy, the Republican leader, do everything possible to be of service to the president of the United States, including pushing or announcing that he was open to voting to support the president on his threatened veto of the National Defense Authorization Act just this past week, based on a flawed understanding of this Section 230 that we've spent a lot of time talking about

as it relates to the platforms and speech. But Kevin McCarthy did not sign. Very interesting that, as we would say, even Kevin McCarthy thought this was not a very wise political move. Let me, if I can, just follow up on the legitimacy question that both of you were talking about because I think it's such an important point. And I think, obviously, to me, this is sort of the culmination of endless questions of legitimacy, specifically as it relates to the courts that President Trump's rhetoric has brought to the fore. And I wonder, Ilya, what you think of this idea.

I mean, I think let's say you're somebody who doesn't follow, you know, every decision to the Supreme Court. You don't know federal courts. you don't know appeals courts from other courts, you don't, you're not a constitutional. You're a normal person. You read this stuff in the newspapers. You're a normal person. The president has spent several years now talking about the judiciary as sort of his team. And, you know, he's very open about why he wanted to put Amy Coney Barrett on the court and said, you know, I might need her in effect. There could be something when the elections disputed. I might need her.

And, you know, on the one hand, that stuff is easy to dismiss because it's so foreign to how kind of serious thinkers treat these issues. On the other hand, the more that he says it, the more that I think it fits a growing perception, particularly on the center right, of what the courts are meant to do. And, you know, conservatives, libertarians might look at what Democrats have done over the years. and say, well, that's how they played the game. So now it's time that we play it this way. Am I being, you know, alarmist about this?

Am I too concerned about this? Or is there something there to be worried about? I think, actually, I mean, that's right what you say, but probably the dynamic is going the other way, meaning that his statements convince more on the left that the judges that he's appointed really are in his pocket and, you know, kind of politicizing the judiciary in that way, even though, as we've seen in the various post-election lawsuits, there have been no shortage, not just a Republican appointed by

Trump appointed judges who have ruled against them in both the district and the important, I think. And the circuit courts. For that matter, Gorsuch and Kavanaugh ruled against him on the House subpoenas and the Manhattan DA subpoenas cases last term. You know, the evidence is there. If you want to look at it, the judiciary or at least Trump appointees are not politicized in that way. But by talking as if they were, he is doing reputational damage or legitimacy damage. And I should say this is kind of going beyond what you just said. But to the extent that the election was close because a surprising number of people who don't like Trump but were scared by the crazy Democratic Party nevertheless voted for him, he is probably damaging long term. party brand by what he's saying post-election as much, if not more, as the previous four years

of what happened, just because this stuff really is, you know, there is no benefit to it. You know, the judge is the deregulation, whatever you might have liked, you know, not being the Democrats with their Green New Deal and everything else. You know, this stuff is not necessary to make that happen. And so, yeah, I think the last month, the president's rhetoric, some of his, you know, political appointees, support, you know, statements and all that, have harmed perceptions of the judiciary, whether from the right or from the left,

we can debate that. And also the, this continuing battle, you know, continuing split of the Republican Party, they just won't let the Democrats continue to have their own circular firing squad between the progressives and the moderates and what happened. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex.

Pre-sale tickets for future events subject to availability and varied by race. Turns and conditions apply. Learn more at amex.com. I know you're on your way to the Johnson Space Center with your family today. The Kennedy Space Center. We're in Florida, not Houston. Freudian, perhaps. So here's my question to you.

By the way, by the way, I don't know if you saw this Twitter meme where, well, Trump said that, you know, no president has, you know, I won Florida in Ohio and no president has ever won without winning Florida in Ohio. And I saw people bringing up Kennedy, which I thought was not the good, the best example in response to that because, of course, Kennedy only won because of fraud in Illinois and Texas. But anyway, if you were offered the opportunity to be one of the first people to travel to. Mars, would you take it? They desperately need a constitutional lawyer on the trip to set up the rule of law on Mars. Is Ilya going to do his duty? Well, look, one of the shows that my wife and I binged during the pandemic is away on Netflix, which involves travel to Mars, but basically the people, it's unsure they might get killed.

Plus, it's like three years away from their family. So at this point, with my kids being so little, and I really wouldn't want to take that time away from my family. If they engineered some way where you can take your family and there's hollow decks and full education and all of that, you know, maybe something like that. But at this point, I don't know. I'd have to see what the terms of the offer really are

and what the safety measures are and the probability of returning home alive and all of that sort of thing. But I'll leave it there. spoken like a true lawyer, wants to see the fine print. It sounds like the rule of law will need another advocate on Mars.

Steve, do you go? They need a reporter? Sure. I'll give it a shot. Why not? I'd like to bring my family too. I mean, all of the things that Ilya said about my family.

Steve would need to inquire about the chicken wings and the galley on the spaceship going over. There's no question about that. Yes. I think that's right. My husband informed me recently. that he would be heading to Mars, if given the opportunity.

And I was like, wait a second, that feels like a family conversation. Yeah, no, I mean, I think, let me be clear about agreeing to the stipulation that Aaliyah mentioned. I would have to bring my family. I would want to bring my family. I would not leave my family. But if we could arrange that, maybe we could live next door to the Shapiro's. All right. Thank you, Dispatch listeners.

Thank you, Ilya, for joining us. Have fun with your family today. Thank you. care. This episode is brought to you by Squarespace. Squarespace is the platform that helps you create a polished professional home online. Whether you're building a site for your business, your writing, or a new project, Squarespace brings everything together in one place. With Squarespace's cutting-edge design tools, you can launch a website that looks sharp from day one.

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