The Post & Email 9/2/2024
"THE FOUNDERS WOULD BE DISAPPOINTED" Although not specifically addressed in the formal Rules of Procedure of the Supreme Court, in practice, however, the Court recognizes a protocol whereby an individual Justice can prepare and issue his or her comment on the summary disposition of cases by orders, e.g., if a Justice wants to dissent from the denial of certiorari or concur in that denial. This mechanism is called an “Opinion Relating to Orders.” And while it is the rule that the denial of a certiorari petition is not a precedential ruling on the merits of a case, under the protocol at issue, an individual Justice is free to comment on the denial either by way of concurring in its denial or by dissenting from its denial and explaining his/her reasoning for concurring or dissenting.
With respect to the “Natural Born Citizen (“nbC”) issue, the matter is complicated by the Court’s rigid interpretation of the requirements of litigant “standing” to bring the matter before the Court.
Your humble servant previously addressed the issue here in the context of the filing of (and subsequent denial of) a petition for certiorari filed in USSC Docket No. 20-1503, captioned “Laity v. Harris.” When, as expected, Mr. Laity’s petition was denied, and his petition for rehearing thereafter denied, Justice Thomas “passed” on the invitation to author an “opinion relating” to the denial of certiorari in Mr. Laity’s case.
While Justice Thomas could have confined any such opinion to the “litigant standing” component, it also presented an opportunity for him to invite persons with clear standing to bring such an action, allowing the issue to be presented to the Court on the merits finally, for binding precedential adjudication. Your humble servant has in the past suggested that persons with clear litigant standing include current Speaker of the House Michael Johnson and Presidential candidate (in states where he has not suspended his campaign) Robert F. Kennedy, Jr. So far as known, neither of those persons has acted…, and each day that passes without any such action brings the Republic closer to the potential of again installing a constitutionally-ineligible person into the presidency.
Under the Court’s 1803 decision in Marbury v. Madison the Supreme Court has the absolute final say on what the Constitution means. Translation: the U.S. Supreme Court – rather than some weekend media talking head or an Ivory Tower academic, or a former official in the Department of Justice Solicitor General’s Office…, or even a humble servant offering thoughts at The P&E – is where the proverbial “buck stops” with regard to what the “natural born Citizen” restriction in Art. 2, § 1, Cl. 5 means…, or more precisely, what the Framers of the restriction intended it to mean. If a different meaning is to be ascribed to the restriction, that must come if not from a decision of the Court, then from a properly crafted and ratified amendment.
One might even be tempted to conclude that the Supreme Court itself has fallen into the same tar pit where the electorate is now mired: terminal indifference, which is arguably close to abdication of its duties under its Marbury decision. It is much easier to mentally “move along…,” since there is “nothing to see here…” Anyway, it is Labor Day… time to fire up the grill and barbecue some burgers and brats. And besides, the conclusions of the CRS and Messrs. Clement and Katyal are “close enough for government work.” So don’t rock the boat.
The Founders would be disappointed.
More:
https://www.thepostemail.com/2024/09/02/opinions-relating-to-orders-and-the-nbc-issue/
