There’s already been a lot written about the Court’s brief statement in Texas v. Pennsylvania, but I thought I’d offer my sense of the holdings. Here’s the Court’s order issued December 11, 2020:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Texas filed three motions: a motion for leave to file a bill of complaint; a motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay; and a motion for “expedited consideration of the motion for leave to file a bill of complaint and for expedition of any plenary consideration of the matter on the pleadings if plaintiffs’ forthcoming motion for interim relief is not granted.”

The Court, I think, had four holdings:

First, does 28 U.S.C. § 1251(a) allow the Court to decline a motion for leave to file a bill of complaint in an “original and exclusive jurisdiction” case? The Court divided 7*-2 on this issue in concluding that yes, it can decline. And it’s not a surprise, as I told a reporter last week: Justices Clarence Thomas and Samuel Alito have repeatedly in other cases argued that the Court may not decline the motion.

Second, if the Court is allowed to decline such a motion, should the Court grant the motion for leave to file a bill of complaint? By a 7*-0 vote (an issue Justices Thomas and Alito would not reach), the Court said no, and the Court declined the motion for leave. The Court did not need to give a reason, but here it did—because, the Court noted, Texas lacked standing.

Third, should the Court grant the motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay? By a 9*-0 vote, the Court said no—7* justices because the answer to the Second holding (above) rendered the motion moot, and 2 justices (Thomas and Alito) because of unarticulated reasons (more on this in the closing thoughts below).

Fourth, should the Court grant the motion for expedited consideration, etc.? By at least a 7*-0 vote, the Court said no, as all other motions were “dismissed as moot.” It is not clear whether Justices Thomas and Alito thought so—the separate statement indicates they “would not grant other relief,” but expediting the proceedings is not really a request for “relief.”

One last wrinkle: did Justices Thomas and Alito, in their statement that they “would not grant other relief,” opine on whether they would grant relief requested in the complaint? I don’t think so. Granting the motion for leave to file a bill of complaint would open the process up to the ordinary rules of civil cases, including allowing the defendant States to file an answer, or a Rule 12 motion to dismiss, and so on. (No State filed such a motion.)

It’s possible that this ambiguity should be construed as Justices Thomas and Alito agreeing to grant the the motion, but turning around and sua sponte rejecting the relief sought in the complaint for lack of standing or on the merits (for unarticulated reasons). But the phrase, “I express no view on any other issue” suggests that this isn’t the case.

In closing, that’s how I parse this case at the moment. And I don’t think it tells us really anything about any justices’ thoughts on the merits. But it does suggest that even Justices Thomas and Alito saw no likelihood of success on the merits, as their denial of the motions for preliminary injunction, etc. suggest as much.

*UPDATE: Jon Endean in the comments helpfully points out that because the justices are not on the record, we do not know if all of them agreed. Some may have disagreed but were not on the record about it. So it could be only 5 or 6 justices instead of 7, or it could be 7 or 8 justices instead of 9. And it’s entirely fair to emphasize that the “shadow docket” does not formally record all of the justices’ positions. So my instinct is that if a justice disagreed, she might write separately; but that is not necessarily the case, and so I include the asterisks.