Trump’s federal case was dismissed with what looks like a very clear ruling https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Order-Granting-MTD.pdf . He will undoubtedly appeal, hoping to be heard at the Supreme Court eventually.

Given the apparent weakness in his case, can the higher courts simply refuse to hear the case and if so, on what legal basis?

  • If I'm not mistaken, the judge was appointed by Democrats, while its appeals court (third circuit) and SCOTUS are more Republican.
    – bobcat
    Nov 22 '20 at 9:02
  • @MaxB I think the judge is a republican who was appointed by Obama as some sort of compromise deal. But that surely can’t be the main factor.
    – Anush
    Nov 22 '20 at 9:04
  • @MaxB What does that have to do with anything? You can't appeal a case based on who was president when a judge was nominated.
    – bdb484
    Nov 22 '20 at 19:49
  • @bdb484 I'm just saying the Trump campaign might find friendlier ears in the court of appeals.
    – bobcat
    Nov 22 '20 at 20:03
  • I think that's true, but it doesn't really address the question.
    – bdb484
    Nov 22 '20 at 20:10

Yes and No

The Supreme Court can decide which cases they hear and which they don’t. This is actually a very common feature of the highest courts in jurisdictions around the world.

However, intermediate appellate courts do not have this discretion - they must hear any appeal put to them - sometimes, very briefly.

They do not have to give reasons why or why not they hear a particular appeal and that decision is not subject to oversight. The Supreme Court only hears about 2% of the applications made to it.

Whether the case has any legs is a relevant but by no means conclusive consideration. The court may take Trump’s case solely for the purpose of stating clearly and unambiguously that it’s bullshit. That way, it dissuades future plaintiffs from bringing similar cases.

Of course, it’s relevant to point out the courts in the United States are waaaaaaaaaaaaaaaaaaaaaaaaaaaaaay more political than independent courts anywhere in the world - autocratic states notwithstanding. So, also, politics.

  • I guess this applies equally to the appeals court where they are appealing to now.
    – Anush
    Nov 22 '20 at 11:39
  • The case was dismissed with prejudice. I guess this means the only thing they can appeal is the ability to appeal?
    – Anush
    Nov 22 '20 at 12:56
  • 1
    @Anush That means they can't try to bring the case again. It's a bar against relitigating the case, not a bar against the form or scope of appeals. Nov 22 '20 at 13:31


The court of appeals cannot simply refuse to hear the appeal.

The Trump campaign has the right to an appeal to the U.S. Court of Appeals. Once there, the court has some discretion as to how quickly it hears the case, how much time it spends on the case, and how much detail it offers in explaining its final decision. But it may not simply choose not to hear the case.

The campaign is not, however, permitted to file an appeal if there is no good-faith basis for it, nor may it file an appeal merely to delay the outcome it seeks to avoid, and the district court's findings seem to be designed to flag this as a potential issue for the circuit court. If that court thinks the appeal is frivolous, it would likely issue a show-cause order requiring the campaign to explain why the appeal should not be dismissed.

In any event, the court cannot simply assess the case as weak and dismiss it without giving the campaign a chance to explain why that is the wrong choice.

If Trump is unsuccessful before a panel of the Court of Appeals for the Third Circuit, he may ask the entire Third Circuit to hear the case, and he may seek review at the Supreme Court. Neither court is required to hear the case at all, or to explain why it chose not to. In the vast majority of cases, the court simply refuses to hear cases with a one-sentence order. Given the nature of the case, though, it is reasonably likely that at least one member of the court would write to discuss the court's decision.

  • The Internet is abuzz with speculation about the recent circuit assignments which bring the number of conservative SCOTUS judges in the contested states to four. Is this relevant to the probability of SCOTUS hearing the case, in your opinion?
    – bobcat
    Nov 22 '20 at 20:34
  • 1
    Not really. The decision to hear a case has basically nothing to do with which justice is assigned to the circuit from which it originated.
    – bdb484
    Nov 23 '20 at 1:49

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