Trump requested to be joined to suit, but was never on it, since it was declared moot before he could do so...which means that the swift denial might have been a way for SCOTUS to protect his ability to bring it successfully using Rudy G. as the AG in a last-minute, surprise switcheroo. Why, then, would Alito and Thomas object to the denial? First, it was not a dismissal on the MERITS of the case by ANY of the judges. Second, the split might have been done to show that the three Trump appointees are not guilty of cronyism, but to also maintain the hope of Americans wanting a fair hearing about wanting to secure a fair election process in the event the denial was based merely on format (no AG filing suit), thus giving Trump's legal team time to "run down the clock" before a "Hail Mary" passing touchdown for his team all the way to the end zone. Third, Alito might have been blinded by anger that PA deliberately disobeyed him TWICE, and Thomas been blinded by bitterness for the grief he visited upon Thomas (and his mother) by Biden, whereas the other judges bore in mind the Throckmorton case and are simply biding their time until an AG filing gives them irrefutable license to accept the case. I sure hope that Jay Sekulow and Rudy Giuliani are using some "ninja chess" strategies herein!
Not a lawyer, but go read U.S. versus Throckmorton, emphases paragraph 22 and these ones (29-31) and :
"There is another objection to the bill which, though not going to the merits, is, in our opinion, equally fatal to it in its present shape.
We are of opinion that, unless by virtue of an act of Congress, no one but the Attorney-General, or some one authorized to use his name, can bring a suit to set aside a patent issued by the United States, or a judgment rendered in its courts on which such a patent is founded.
That is the case before us, and we see nothing in the bill to indicate to the court that it ever received the sanction of the Attorney-General, or was brought by his direction. The allegation already cited implies that Mr. Van Dyke, the district attorney, is the complainant; but if, construing it liberally, we hold that the United States is the complainant, the statement is clear that the bill was brought by the district attorney, and not by the Attorney-General. Leaving out of consideration all mere questions of form, there arises no presumption from the act of Congress which gives the Department of Justice a general supervision over the district attorneys, that this suit was brought by his direction; for they, in the strict line of their duty, bring innumerable suits, indictments, and prosecutions, in which the United States is plaintiff, without consulting him. In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the Attorney-General as indorsing the suit before it will be entertained. The reason of this is obvious; namely, that in so important a matter as impeaching the grants of the government under its seal, its highest law officer should be consulted, and should give the support of his name and authority to the suit. He should, also, have control of it in every stage, so that if at any time during its progress he should become convinced that the proceeding is not well founded, or is oppressive, he may dismiss the bill."
Translation? Barr might need to file, but seems he won't. Perhaps Trump will do a last minute fire and install Rudy G. as Attorney General to file. Just speculation, folks.
Trump requested to be joined to suit, but was never on it, since it was declared moot before he could do so...which means that the swift denial might have been a way for SCOTUS to protect his ability to bring it successfully using Rudy G. as the AG in a last-minute, surprise switcheroo. Why, then, would Alito and Thomas object to the denial? First, it was not a dismissal on the MERITS of the case by ANY of the judges. Second, the split might have been done to show that the three Trump appointees are not guilty of cronyism, but to also maintain the hope of Americans wanting a fair hearing about wanting to secure a fair election process in the event the denial was based merely on format (no AG filing suit), thus giving Trump's legal team time to "run down the clock" before a "Hail Mary" passing touchdown for his team all the way to the end zone. Third, Alito might have been blinded by anger that PA deliberately disobeyed him TWICE, and Thomas been blinded by bitterness for the grief he visited upon Thomas (and his mother) by Biden, whereas the other judges bore in mind the Throckmorton case and are simply biding their time until an AG filing gives them irrefutable license to accept the case. I sure hope that Jay Sekulow and Rudy Giuliani are using some "ninja chess" strategies herein!
Not a lawyer, but go read U.S. versus Throckmorton, emphases paragraph 22 and these ones (29-31) and :
"There is another objection to the bill which, though not going to the merits, is, in our opinion, equally fatal to it in its present shape.
We are of opinion that, unless by virtue of an act of Congress, no one but the Attorney-General, or some one authorized to use his name, can bring a suit to set aside a patent issued by the United States, or a judgment rendered in its courts on which such a patent is founded.
That is the case before us, and we see nothing in the bill to indicate to the court that it ever received the sanction of the Attorney-General, or was brought by his direction. The allegation already cited implies that Mr. Van Dyke, the district attorney, is the complainant; but if, construing it liberally, we hold that the United States is the complainant, the statement is clear that the bill was brought by the district attorney, and not by the Attorney-General. Leaving out of consideration all mere questions of form, there arises no presumption from the act of Congress which gives the Department of Justice a general supervision over the district attorneys, that this suit was brought by his direction; for they, in the strict line of their duty, bring innumerable suits, indictments, and prosecutions, in which the United States is plaintiff, without consulting him. In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the Attorney-General as indorsing the suit before it will be entertained. The reason of this is obvious; namely, that in so important a matter as impeaching the grants of the government under its seal, its highest law officer should be consulted, and should give the support of his name and authority to the suit. He should, also, have control of it in every stage, so that if at any time during its progress he should become convinced that the proceeding is not well founded, or is oppressive, he may dismiss the bill."
Translation? Barr might need to file, but seems he won't. Perhaps Trump will do a last minute fire and install Rudy G. as Attorney General to file. Just speculation, folks.
https://www.law.cornell.edu/supremecourt/text/98/61
He hasn’t been damaged until the EC votes. Can refile then.