November 25, 2020

Justice Clarence Thomas May End Up Deciding Pennsylvania Against Former VP Biden

U.S. Supreme Court Justice Clarence Thomas participates in taking a new family photo with his fellow justices at the Supreme Court building in Washington, D.C., U.S., June 1, 2017. REUTERS/Jonathan Ernst – RC15CF6608B0

In a weird twist of events, it’s possible that Justice Clarence Thomas could write the opinion that gives Pres. Trump the presidency for the next 4 years. If Trump is able to get Georgia and either Arizona, Michigan or Wisconsin to go his way, it will all come down to Pennsylvania. Pennsylvania is likely headed back to the Supreme Court, who did not want to get involved before the election. Justice Alito already told Pennsylvania to sort their ballots by when they arrived, and if there’s enough that arrived late, the SCOTUS may be asked to invalidate them based on the same Equal Protection Amendment to the Constitution that gave President George W. Bush the win over former VP Al Gore in the 2000 election.

The left-wing legal pundits have long treated the Rehnquist concurrence dismissively because only two of the other eight members of the Court joined the Chief Justice in his “textualist” approach to the meaning of “legislature” in Cl.2.  On that same basis, they are treating the Petition to invalidate the Pennsylvania Supreme Court’s order that extended the ballot-receipt deadline — which raises the argument made by Chief Justice Rehnquist in concurrence — with similar dismissiveness.  I’ll go into more detail in a subsequent story looking at the legal issues involved in his textualist approach.

But, what is important to know now is that Justice Thomas was one of the two Justices who joined Chief Justice Rehnquist’s concurrence.  Further, the “textualist” view of Constitutional law has gained much ground in the judiciary since 2000.  Justices Gorsuch and Barrett are clearly “textualists” in their approach to statutory and constitutional interpretation, and while not quite as clearly defined, Justice Kavanaugh has already written that he has significant issues with what the Pennsylvania Supreme Court did.

If Chief Justice Roberts lines up with the three liberals, and there is a 5-4 vote to overturn the Pennsylvania Supreme Court’s decision, the senior Justice in the majority determines who writes the Court’s Opinion. That would be Justice Thomas, and it is my prediction that in that event he would choose to write the opinion himself.

The Revenge of Clarence Thomas — Bush v. Gore and the Facts Underlying The Pennsylvania Court Cases

Considering the fact that it’s former VP Biden that tried to keep Justice Thomas off the Supreme Court, this would be most interesting indeed.

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