The Post & Email by Joseph DeMaio 7/6/2021
In addition to writing majority opinions, dissenting opinions and concurring opinions, Justices of the U.S. Supreme Court sometimes prepare and issue “Opinions Relating to Orders.” These opinions constitute the view of one or more of the Justices relating to the summary disposition of cases. The most common instance of a summary disposition of a case before the Court is that of a denial of a petition for a writ of certiorari.
A Justice who wishes to concur in such a denial, dissent to the denial (or, for that matter, to the granting of certiorari) or simply comment on the status of the case may prepare and issue his/her personal opinion regarding the action of the Court. Your humble servant made such a suggestion here with respect to the case of Laity v. Harris, USSC Docket No. 20-1503. With that brief backdrop, let us briefly revisit the case.
The litigation, of course, involves a challenge by one Robert Laity to the constitutional “natural born Citizen” eligibility of Kamala Devi Harris to serve as vice-president. His petition for a writ of certiorari to the U.S. Court of Appeals for the District of Columbia Circuit – which had affirmed the dismissal of his case by the U.S. District Court for the District of Columbia for lack of his “standing” to bring and maintain the action – was denied by the Supreme Court on June 1, 2021.
The denial came without any comment from a Justice by way of either a “statement,” “concurrence” or “dissent” in the form of an “Opinion Relating to Orders.” In particular, there was no statement, concurrence or dissent from Justice Clarence Thomas. One could thus conclude that no Justice, including Justice Thomas, disagreed with any aspect of the denial.
Faithful P&E readers will recall that Justice Thomas has in the past stated – jokingly, according to some – that with regard to the constitutional “natural born Citizen” eligibility question under Art. 2, § 1, Cl. 5 of the Constitution, the Court is “evading that one.”
Whether Justice Thomas was “joking” or not – and regardless of whether one views the position of the Court as “evading” the issue or merely “avoiding” the issue awaiting the “right case,” – the fact remains that while the Court has mentioned the term “natural born Citizen” many times in other contexts, it has never, to this day, accepted jurisdiction over a case or controversy directly addressing the Art. 2, § 1, Cl. 5 “natural born Citizen” bona fides of either a sitting or yet-to-be installed president or vice-president.
While there may be a variety of reasons for this circumstance including, for example, lack of “standing,” “separation of powers,” “political question” or garden variety “the issue is too radioactive,” the fact remains that in the absence of a definitive Supreme Court decision, the question of who can – and more importantly, who cannot – serve as president or vice-president under the Constitution has been sloughed off to the opinions of lower state and federal courts, the Congressional Research Service (more on that later) and a bevy of law professors and former Solicitors General.
More:
https://www.thepostemail.com/2021/07/06/ussc-opinions-relating-to-orders-and-summer-order-lists/
