With all of the failed legal challenges to
the election by Donald Trump, there doesn’t appear to be any meaningful way for
him to overturn the results at this point. Biden partisans can relax
notwithstanding the strange behavior originating from the White House.
Those who pay attention to television news
may have heard that Mr. Trump has one colorable claim. The Pennsylvania Supreme
Court, confronted with a drop dead deadline for votes to be received (8 p.m. on
election day), and the numerous applications for mail-in ballots due to the
pandemic, decided on state constitutional grounds to extend that deadline by
three days. [1]
This might seem to be unassailable, and it
should be. Electors for each state are chosen in the manner that it’s
legislature decides. [2] And the highest
court in each state has the final say on what the law in that state is, because
the U.S. Constitution grants jurisdiction to declare the law to the federal
judiciary only in cases involving federal law. Federal courts apply state law
when there are no federal questions involved, and the matter comes to the federal
courts in some other way, such as the parties are from different states. [3] (The Constitution
is, of course, federal law, and that is why state laws can be struck down by
federal courts on federal constitutional grounds.)
The Republican Party of Pennsylvania, the
losers in the Pennsylvania case, petitioned the Supreme Court to review the
matter, and requested that the case be expedited because of the upcoming
election. That request was denied. But Justice Alito, joined by Justices Thomas
and Gorsuch, dissented from that denial. He felt that the case should be heard
right away. [4]
His reasoning was that the state statute
that provides for the drop dead date should have been applied more strictly by
the Pennsylvania Supreme Court, apparently disapproving of the way the court
dealt with its own state constitutional law. In other words, he wanted the
United States Supreme Court to pass on how the Pennsylvania Supreme Court
interpreted its own state’s law.
Now Justice Alito is widely considered to
be a “conservative” Justice, as are Justices Thomas and Gorsuch. Up to now, we
have considered “conservatives” to be more solicitous of federalism. But that
thinking didn’t seem to prevail upon Justice Alito this time. Fortunately, he
was in the minority.
But the fact that this kind of thinking exists on the Supreme Court should cause concern. Justice Alito was registering his views only in connection with a decision on whether to expedite the appeal, not on a final decision. But the fact that three Supreme Court Justices are of the view that they are empowered to overturn a state supreme court’s decision about its own state law is alarming. If people decide that the Justices make decisions on partisan grounds, they can point to Justice Alito’s opinion as evidence. That’s bad for the Court, and bad for public confidence in the Court; and that’s bad for the country.
