The Take a Deep Breath Department
A lot is being been made over a little. Although I do not want to change the nature of this blog (whatever that is) to do legal analysis, I was astounded to read that certain people are very excited because the United States Supreme Court has a case on their docket. It’s time for some to take a deep breath.
A petition for certiorari was filed in Brunson v. Adams (Case #22-380) that asks the court to review whether lower courts properly dismissed an action that alleged that Congress violated its duty to investigate the 2020 elections. The case had been decided on jurisdictional grounds, which did not address the merits of the issue. The 10th Circuit Court of Appeal ruled that the plaintiffs had no standing to raise the issue. After the plaintiffs (who represented themselves) filed for review, the solicitor general waived the right to file a response. The court then calendared the case for January 6, 2023.
It is an interesting date, to be sure, and various people have heralded the case as one that could void the election and restore Trump to power. Some asked if this is the case that will clear he swamp. Pundits like Juan Savin and Simon Parkes were among those taking special note.
Kerry Cassidy found it important that the case was “added to the court’s emergency docket” and wondered why the court it “suddenly admits the Brunson case for consideration.” Creative Destruction Media stated, “This case is before SCOTUS because they CHOSE to review this case. . . . the question remains why did they agree to review this case?”
The lawyer in me let out a deep sigh. I don’t want to address whether a petitioner from Utah acting alone, or with his brothers, could hope to change the course of history. Important cases have been decided after the Supreme Court received a pro se petition — perhaps the most famous is Gideon v. Wainwright that established the right to counsel in criminal cases, which was heard after a prisoner addressed a simple letter to the court. But let’s put things into perspective. The court simply placed Brunson on its regular calendar. There is nothing that indicates that it was done on an emergency basis.
The case is not before the court because they chose they review it. It is calendared for conference because the court received a petition. It ended up being properly filed, which means a clerk believed that it was timely and appeared to meet the rules for filing. It then became the court’s job to rule on the petition. There was no discretionary act. Nothing more or nothing less can be inferred because a case is before the court. Creative Destruction Media and others fail to grasp that important distinction.
The court will calendar around 130 of cases for a particular day. Unless it believes that there is something noteworthy, the case is not necessarily discussed at conference. It routinely publishes a list of cases where petitions for certiorari are summarily denied. Occasionally there will be a dissent from that denial, but for most it is as far as it goes. Rarely is review granted.
Perhaps people are giddy with anticipation. The present court has demonstrated that it has no regard for precedent or anything other than their own politics. Some point out that only four votes are needed for the court to set the case for a full hearing. Still, it is a big jump to think that there is anything out of the ordinary with this one.
The petition was filed without significant legal analysis or amicus briefs in support of it. The 10th Circuit’s decision was based on matters that are not controversial. It would be more interesting if the Solicitor General had taken it seriously enough to file an opposition. The waiver filed by them does not indicate a concession, rather that they had more important things to do.
If anything I think the interest in this case is more about the nature of belief than anything else. It shows the straws that people are willing to grasp. No matter how many times the QAnon pundits are wrong, there is always something coming, another dose of hopium.
If I may add a word of warning. Do not rely on Kerry or Juan for legal and political analysis. Kerry does not have a good track record regarding legal matters. Juan and Simon Parkes are rarely, if ever, right about anything. Moreover, always distrust sources that use excessive capitalization.
I have been wrong about legal matters before — or more accurately, the court has been wrong in denying some of the petitions I have brought. In this case, however, I would say that the federal courts made sound decisions in rejecting the original case. Even with the sea change in the judiciary in mind, I label Brunson and its hype as “woo.”
Perhaps there will be a January surprise . . . but I doubt it.