Are Justices Alito, Thomas and Gorsuch ready to help Trump win the election?

On By Littum

The Supreme Court on Friday rejected a Republican appeal to block certain Pennsylvania votes from being counted in the battleground state. As happens all too often in emergency appeals, the court did not explain itself. The only published thoughts on the matter came in a brief statement from Justice Samuel Alito, along with fellow GOP appointees Clarence Thomas and Neil Gorsuch.

The separate Alito brief was not a dissent. But he chose to write it, and two judges chose to join it, so it’s worth unpacking its possible meaning and impact on what could be a close election.

Here’s how statement in two parts began:

This case concerns a recent decision by the Pennsylvania Supreme Court that adopted a controversial interpretation of important provisions of the Pennsylvania Election Code. Specifically, the court ruled that a provisional vote must be counted, even if the voter has previously cast an invalid postal vote within the deadline required by law.

Note that Alito considered the state court’s action controversial, indicating that he disagrees with it, although he did not distance himself from the court’s rejection of the challenge to that action. He then uncritically described the GOP challenge:

Plaintiffs argue that this interpretation overrides the plain meaning of the state election code, see 25 Pa. Cons. State. §3050(a.4)(5)(ii) (2019), and that the interpretation is so far-fetched that it also violates the Elections Clause and the Voters Clause of the United States Constitution. See art. I, §4, cl. 1; Art. II, §1, cl. 2; Moore v. Harper, 600 US 1, 37 (2023). In an effort to prevent county election boards from following that interpretation in next week’s election, the plaintiffs are asking us to stay the state Supreme Court’s ruling or at least order the seizure of ballots that might be affected by that interpretation.

So if these three Republican-appointed justices were apparently sympathetic to — or at least not critical of — the Republican challenge, why didn’t they dissent? Alito went on to explain in the opinion’s second paragraph that it was for technical reasons in the appeal:

The application of the State Supreme Court’s interpretation in the upcoming election is a question of considerable importance, but even if we were to agree with the applicants’ federal constitutional argument (a question on which I express no opinion at this time), we could not prevent, that consequences they fear. The lower court’s ruling concerns only two votes in the long-concluded Pennsylvania primary. Upholding that ruling would not impose any binding obligation on any of the Pennsylvania officials responsible for conducting this year’s elections. And because the only state election officials who are parties to this case are members of the board of elections in one small county, we cannot order other boards of elections to record affected ballots. For these reasons, I agree with the order refusing the application.

Note that after previously describing the state’s decision as “controversial,” he considers the issue raised by the appeal to be one of “significant importance.” So while, as Alito writes, he is not expressing a position on the merits of the GOP argument, the three justices are not rejecting it. If anything, they could be seen as endorsing it and encouraging further challenges in this election.

Of course, this opinion only came from three judges, which is not enough to move the court. That raises the question of what the three other Republican appointees — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — would do if faced with a similar appeal in a case that did not raise the issues Alito flagged. Roberts, Kavanaugh and Barrett have been relatively in the middle of the court these days on some of the most important issues — and this election is no exception.

We shouldn’t infer from silence what the court is up to. That’s what makes a decision like last week’s in Virginia troubling.

This is where it would be helpful if the Court would explain itself, even briefly, in these emergency appeals. We must not infer from silence what the court is up to. That’s what makes a decision like last week’s in Virginia troubling, where the majority allowed the state’s voter purge because of dissent from the court’s three Democratic appointees. without explanation. The majority’s silence in the Virginia case was arguably worse than in the Pennsylvania case because, in Virginia, it granted relief in a case where lower court judges explained why they denied such relief.

But while a majority of the high court has shown no eagerness to intervene for Republicans in any appeal so far this election season, Friday’s declaration could signal that at least three justices are prepared to do so when it counts.

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