Friday, November 13, 2020

Federalism at Your Convenience

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.)

This is a pretty basic understanding. But, apparently, not by everybody.

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.