by Joseph DeMaio, ©2021

(Jul. 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. 

If that collection of “authorities” – as opposed to the U.S. Supreme Court itself – is by default to be deemed as having the “final say” on the interpretation of the Constitution’s eligibility clause, then the Court, at minimum, should articulate that reality.  Lacking that declaration, the issue will continue to surface every four years (or more frequently) into the future.

Following the denial of certiorari in his case, Mr. Laity timely filed a “Petition for Rehearing,” but as of the Court’s “recess” date, July 2, 2021, no action had been taken on the petition.  As noted by Chief Justice Roberts in his July 1, 2021 recess announcement, the current term of the Court will be in recess from July 2, 2021 “until the first Monday in October 2021, at which time the October 2020 Term of the Court will be adjourned, and the October 2021 Term of the Court will begin, as provided by law.”  Stated otherwise, the Court is today only in “recess.”

As it turns out, there are additional events which can take place during the recess, including the issuance of “summer order lists.” These lists normally address “… actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters.” (Emphasis added)  For the current 2020-2021 Term, those summer order lists are presently scheduled to be released on August 2, 2021, August 23, 2021 and September 10, 2021. 

Accordingly, it may be well before the Court’s “long conference” in October – as predicted by commenter Wilson here – that the Court takes action on the Laity Petition for Rehearing.  The timing of that event aside, the question surfaces: might there yet be another opportunity for one of the Justices – say…, Justice Clarence Thomas – to provide some much-needed guidance, perhaps even clarity, on the question of the meaning of the “natural born Citizen” restriction in the Constitution? 

While the denial of a petition for rehearing following the denial of its related petition for certiorari is technically not itself a “summary disposition” of the case at issue – the original denial of certiorari constituting that “summary disposition” – there would seem to be no rule precluding the preparation and issuance of a “statement” as an “Opinion Relating to Orders” and confined to the Court’s action regarding the petition for rehearing in order to provide guidance on the topic.  Indeed, a statement might also issue in the event that the Court grants the petition for rehearing.

Moreover, while such a statement would not constitute a “decision” or “holding” of the Court, but instead would be the personal view of a particular Justice or Justices akin to “dictum” if uttered in a “live” case, at least it would be a “signal” to potential future eligibility challengers possessed of “standing” where that particular Justice (or Justices) stood on the topic.  

Stated otherwise, depending on the content of the “statement,” and assuming for the sake of argument one were to be issued, it could operate to either (a) dissuade future challenges, or (b) invite future challenges from persons possessed of the requisite standing thus far missing in all past attempts.  Your humble servant addressed this issue with regard to the “standing” of former Vice-President Pence here.

In fact, Justice Thomas has authored no fewer than twelve (12) such “opinions relating to orders” in the 2020-2021 Term, including opinions consisting of “statements” as to the disposition of a case, “concurrences” in connection with a grant of certiorari and “dissents” with regard to denials of certiorari

Those cases ranged from matters involving states’ rights regarding marijuana in Colorado to Chicago’s use of eminent domain to the taxation of gambling devices in Oklahoma “Indian Country.”  But in no instance, lamentably, did Justice Thomas address the substantive eligibility issues raised in Laity v. Harris.  Indeed, even if such a hypothetical statement addressed only the “standing” issue, it would still contribute to clarification of the presently muddled legal landscape.

Moreover, an argument could be made that the substantive issues raised in the Laity case regarding presidential and vice-presidential “natural born Citizen” eligibility are at least as important as whether the exercise by Chicago of the power of eminent domain under Kelo v. New London, 545 U. S. 469 (2005) was appropriate.  This is particularly so in light of the fact that Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari in the Eychaner eminent domain case, commenting that the decision in Kelo “… was wrong the day it was decided.  And it remains wrong today.”  See Thomas dissenting Opinion Relating to Order in USSC Doc. No. 20-1214 at 2.

If, as many would argue, the Court’s decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898) is, purportedly, dispositive on the presidential eligibility issue, a statement from a Supreme Court Justice in the nature of an opinion relating to the order of certiorari denial in Laity v. Harris stating as much would remove a lot of the present uncertainty.  Rest assured, faithful P&E readers, your humble servant strongly contends that the Wong Kim Ark decision has nothing to do with the correct interpretation of Art. 2, § 1, Cl. 5 of the Constitution.  But unlike Clarence Thomas, he is not a Justice of the Supreme Court.

There are many who would argue that various decisions of the Supreme Court; of lower federal courts; and of certain state courts – from United States v. Wong Kim Ark to Hollander v. McCain to Tisdale v. Obama to Ankeny v. Governor of Indiana – are either wrongly applied to the eligibility question or are flat wrong as a matter of law.  And this doesn’t even address the “now-you-see-it-now-you-don’t” linguistic ellipsis antics of the Congressional Research Service discussed here.  

Yet these are the non-Supreme Court “authorities” relied upon to establish “the last word” on one of the core provisions of the Constitution: the “natural born Citizen” restriction of Art. 2, § 1, Cl. 5.  Clarification beyond a mere “certiorari denied” notification would be a big improvement over what now passes for “settled” law on the issue, regardless of the ultimate ruling on the Laity Petition for Rehearing.

In any event, if any such “opinion relating to orders” in Laity v. Harris were to be contemplated, it might well be expected sometime around August 2nd or 23rd, 2021 or perhaps September 10th, 2021.  Whether or not Justice Thomas or any other Justice would consider putting pen to paper (or fingers to keyboard) to generate such an opinion remains to be seen and, moreover, it would be unwise to bet the farm on that happening. Nonetheless, even if such a statement resembled dictum, it certainly could not hurt and might actually help bring some clarity and stability to the question.

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  1. Response to “Henry Wilson” from Joseph DeMaio:

    The U.S. Supreme Court isn’t a help desk; it doesn’t exist to answer everyone’s questions.”

    Neither should the Supreme Court be a “perpetuate-the-harm desk.” When one of its Chief Justices makes a patent and spectacular error in an important case, as did Chief Justice Gray in United States v. Wong Kim Ark (“In the Same Words?” – The Post & Email (thepostemail.com)) – a case that has become the “be-all-end-all” of those contending that a 14th Amendment “citizen” is synonymous with an Art. 2, § 1, Cl. 5 “natural born Citizen” – the least that might be expected is for clarification from the Court to correct the misinformation. That is not a “help desk” task: it is a “correct-the-manifest-error-desk” task.

    “While many things are possible, a silent denial of Laity’s petition for rehearing is extremely probable.” That current prediction used to be (Laity Files with SCOTUS for Rehearing – The Post & Email (thepostemail.com)): “The U.S. Supreme Court will deny this petition for rehearing at its long conference in October.”

    Apart from the likelihood that a decision on the petition for rehearing will come long before October, words and phrases are important. Today’s “extremely probable” seems now to be something different and more ambiguous than last month’s categorical “will deny.”

    A hedging of one’s linguistic bet? Perhaps…, perhaps not. Time, of course, will tell.

    1. The U.S. Supreme Court doesn’t respond every time someone, somewhere believes it made an error (“manifest” or otherwise), lest it would spend all of its time responding to the naysayers who refused to accept its rulings.

      Indeed, the lack of unnecessary “clarification” indicates the ones spreading misinformation are those who would interpret the natural-born-citizen clause differently than every judge who heard an eligibility challenge on the merits.

      And, of course, Laity’s case was dismissed not on the merits, but due to lack of standing. And the U.S. Supreme Court already has denied certiorari, so the logical opportunity to “clarify” already has passed.

      The U.S. Supreme Court will deny Laity’s petition for rehearing. And it will do so silently. There was no hedge: “extremely probable” merely was rhetoric to contrast with the slight possibility suggested by appealing to Yogi Berra’s proverb.

      1. Response from Joseph DeMaio:

        Wilson asserts: “The U.S. Supreme Court doesn’t respond every time someone, somewhere believes it made an error (“manifest” or otherwise), lest it would spend all of its time responding to the naysayers who refused to accept its rulings.”

        Point one: there is no disputing by the commenter of the fact that Justice Gray’s “in the same words” statement in the Wong Kim Ark case was and remains both (a) a spectacular blunder, and (b) has not been corrected.

        This is not a situation where “someone, somewhere believes [the Court] made an error.” Instead, it is a situation invoking the principle of res ipsa loquitur (“the thing speaks for itself”). Chief Justice Gray’s blunder is not someone’s mere “belief.” It is a screaming fact. Read the official, published opinion: 169 U.S. at 673.

        Point two: the “naysayers” are not “refusing to accept its ruling,” i.e., the decision holding that Wong Kim Ark was entitled to status as a U.S. citizen under the 14th Amendment, the sole issue before the Court. Rather, they challenge only the intellectual nonsense that the decision also constitutes a “ruling” that Wong Kim Ark – or any other 14th Amendment “citizen” – was or would also be, purportedly, a “natural born Citizen” for presidential eligibility purposes.

        Where, exactly, does Justice Gray say that in the Wong Kim Ark decision, other than by way of an intimation lurking in his “in the same words” blunder? Answer: nowhere.

        Point three: further verbal volleys on this topic would be pointless, as neither Wilson nor your humble servant are Justices of the Supreme Court. Let us await the ruling of the Court on the Laity petition, then go from there.

        1. Acknowledging someone’s belief a court’s ruling was erroneous is not the same as agreeing with that belief. Nor is the lack of an express disagreement with that belief the same as agreeing with that belief. Unsupported assumptions lead to faulty conclusions.

          Characterizing one’s beliefs as facts do not make them so.

          The dissent in Wong Kim Ark readily was able to understand the implications of the holding. Others’ also not accepting these implications is exactly the naysaying that the U.S. Supreme Court does not indulge.

          There is nowhere else to go: Harris continues to serve as vice president; the denial of Laity’s petition for rehearing will not change that.

        2. “The dissent in Wong Kim Ark readily was able to understand the implications of the holding.“

          Even before Justice Gray’s ruling, the US Government in its appellant brief asked if a ruling in Wong’s favor would allow children of Chinese parents to share “in the exalted qualification of being eligible to the Presidency of the nation.”

          http://libraryweb.uchastings.edu/library/research/special-collections/wong-kim-ark/AppellantsBrief.pdf

  2. “in light of the fact that Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari in the Eychaner eminent domain case”

    It seems to me the key here is that Thomas and Gorsuch dissented from the denial. They’re chosing to write an opinion makes sense. If all nine justices agree with the denial why would any of them write an opinion just to say “Yep”?

    “might there yet be another opportunity for one of the Justices – say…, Justice Clarence Thomas – to provide some much-needed guidance, perhaps even clarity, on the question of the meaning of the “natural born Citizen” restriction in the Constitution? ”

    Why is Justice Thomas’ concurring opinion in Zivotofsky v. Kerry not just such a guidance?

    “Miller v. Albright, 523 U. S. 420, 456 (1998) (SCALIA, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States”). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. §§ 1401(c), (d), (g).”

    He cites Miller v. Albright but that case does not say anything about natural born citizens other than Justice Breuer citing the 1790 naturalization act.

    Is it possible that like William Damron Guthrie in 1898, today’s Courts read the Wong Kim Ark decision as making Wong Kim Ark eligible for the Presidency?

    “…therefore, a male child born here of Chinese subjects is eligible to the office of the President, although his parents could not be naturalized under our laws.”

    https://books.google.com/books?id=BOE9AAAAIAAJ&printsec=frontcover&dq=%22lectures+on+the+fourteenth+article+of+amendment+to+the+constitution%22+wong&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&sa=X&ved=2ahUKEwihibOXvc_xAhXuJzQIHVuOBB84ChC7BTABegQIBxAH

    BTW, it appears the number of eligibility cases has dropped off considerably since the Obama years.

    1. “Why is Justice Thomas’ concurring opinion in Zivotofsky v. Kerry not just such a guidance?”

      This could truly be guidance from Thomas on his thinking, especially if viewed in the context of the timing of the opinion.

      Justice Thomas had no reason to use the term “natural-born citizen.” He could have simple said the Court in Miller v Albright determined that children born abroad to U. S. parents are citizens. He deliberately chose to add the modifier “natural-born.”

      Why? Zivotofsky was not running for President.

      Maybe the clue lies in the timing of the decision.

      Zivotofsky v Kerry was issued in June, 2015. What happened earlier that year?

      On March 23rd, 2015, Ted Cruz announced he was running for President. Questions of his eligibility were already in the news. Just prior to the Cruz announcement, Neal Katyal and Paul Clement wrote in the Harvard Review, “All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.”

      Look again at what Thomas wrote, “…natural-born citizens …do not need to go through the naturalization process.” He appears to be paraphrasing Katyal and Clement.

      Maybe this was Justice Thomas’ “permit me to hint” moment.

      FYI in the case Justice Thomas cites (Miller v Albright), the child in question was born to a US citizen father and an alien mother.

      1. Response from Joseph DeMaio:

        Regarding Mr. Fremick’s comment on Justice Thomas’ “concurrence” in Zivotofsky v. Kerry (ZIVOTOFSKY v. KERRY | Supreme Court | US Law | LII / Legal Information Institute (cornell.edu)) (the excerpted language appears to be from that part of his dissenting, rather than concurring, opinion), much like Chief Justice Horace Gray in Wong Kim Ark – who erroneously asserted that Congress in 1795 enacted “in the same words” the “considered natural-born citizens” language of the repealed 1790 statute, discussed here (“In the Same Words?” – The Post & Email (thepostemail.com)), Justice Thomas could take the opportunity in an “opinion relating to orders” in the Laity case to “clarify” or “correct” his statement in Zivotofsky.

        Specifically, Justice Thomas’s statement that “It [i.e., Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process…” and citing as authority for that conclusion “8 U. S. C. §§ 1401(c), (d), (g)” is, with utmost due respect, questionable. That statute prescribes only those who, under the 14th Amendment, shall be “nationals and citizens of the United States at birth.” (Emphasis added) It does not purport to declare a such a person to be, in addition, a “natural born Citizen” for presidential eligibility purposes under Art. 2, § 1, Cl. 5.

        Congress does not have the power through statute to modify or alter the Constitution, as confirmed in 1795, when it repealed via 1 Stat. 414 the “natural born” modifier it had erroneously placed before “citizens” in 1 Stat. 103, discussed here (Of Neologisms, End-Around Runs and Gorillas: The Congressional Research Service 2016 Report on Presidential Eligibility – The Post & Email (thepostemail.com)). Whether Justice Thomas (or a law clerk) added that provision to the description of the statute accidentally or intentionally is unclear, making it a question “ripe” for clarification.

        Moreover, if in arriving at his statement in Zivotofsky, Justice Thomas was relying on Chief Justice Gray’s manifestly incorrect “in the same words” description of the relationship between the 1790 Naturalization Act (1 Stat. 103) and the 1795 Naturalization Act (1 Stat. 414) in Wong Kim Ark, a “statement” or “opinion relating to orders” following denial of the Laity certiorari petition could help to correct any confusion.

        As for commenter Becker’s observation and suggestion that Justice Thomas’s Zivotofsky statement may have been related to the 2015 candidacy of Ted Cruz and the Harvard Law Review Forum online article by Paul Clement and Neal Katyal (On the Meaning of “Natural Born Citizen” – Harvard Law Review) discussed here (The Decisions in Elliott v. Cruz and Williams v. Cruz – The Post & Email (thepostemail.com), that would seem to indicate that, at least in Mr. Becker’s view, Justice Thomas might have been coloring his words with a slight political patina. Surely Supreme Court Justices would not intentionally indulge in such behavior…, would they?

        As commenter Becker intimates, perhaps this was Justice Thomas’s “permit me to hint” (To George Washington from John Jay, 25 July 1787 (archives.gov)) moment. On the other hand, if it was something else – either an inadvertent oversight or an error based on a misreading of Wong Kim Ark – a statement in the nature of a clarifying opinion relating to the order denying Mr. Laity’s petition and/or ruling on his petition for rehearing would help.

        1. The U.S. Supreme Court isn’t a help desk; it doesn’t exist to answer everyone’s questions.

          And it is baffling to believe that any justice might issue an opinion relating to an order for a petition for rehearing; the cert. petition would have been the better opportunity for such a statement. But that didn’t happen with Laity’s petition.

          Regardless, the lower courts’ rulings were based only on standing.

  3. There are an infinite number of legal questions that the U.S. Supreme Court has not “definitively” answered.

    So an answer from the U.S. Supreme Court for any particular issue’s resolution faces dauntingly low odds of happening. But this is especially so when all lower courts have come to the same conclusion.

    The U.S. Supreme Court does not expend its limited resources merely to acknowledge the lower courts’ correct application of the law. It presumes the courts will do so and steps only for rare occasions, such as when there is a conflict among courts.

  4. Excellent story. One important note: Over the weekend, Mike Lindell confirmed that President Trump will resume as President in the White House on August 13, 2021:

    “The MyPillow CEO revealed the date for Trump’s reinstatement in an interview over the weekend: ‘By the time of the morning of August the 13th, it will be the talk of the world, Lindell told conservative host Brannon Howse. ‘Let’s get this election pulled down. Let’s right the right. Right now, the biggest concern is getting this election pulled down,’ he added.”

    So the question is, if President Trump is returned to office, will that make Laity v. Harris, USSC Docket No. 20-1503, a moot case?

    What if the Supreme Court issues an opinion on August 2, 2021, one of the dates you mentioned on the Summer Order Lists? Could Kamala Harris be removed, and then President Trump reinstated? How would that work?