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

The Supreme Court on Friday rejected a Republican appeal to block the counting of certain Pennsylvania votes in the battleground state. As happens all too often in urgent appeals, the court made no statement. The only published thoughts on the matter came in a brief statement from Justice Samuel Alito, along with fellow Republican nominees Clarence Thomas and Neil Gorsuch.

Alito's separate letter was not a contradiction. But he chose to write it, and two justices chose to join him, so it's worth explaining its possible meaning and impact on a potentially close election.

This is how the two-paragraph statement began:

This case involves a recent decision by the Pennsylvania Supreme Court that adopted a controversial interpretation of key provisions of Pennsylvania election law. Specifically, the court ruled that a provisional ballot must be counted even if the voter previously submitted an invalid mail-in ballot within the statutory deadline.

Note that Alito called the state court's lawsuit controversial and indicated that he disagreed with it, although he did not disagree with the court's rejection of the challenge to that lawsuit. He then uncritically described the GOP challenge:

Petitioners contend that this interpretation disregards the clear meaning of the state election law, see 25 Pa. Cons. Stat. §3050(a.4)(5)(ii) (2019) and that the interpretation is so far removed that it also violates the Elections Clause and Elections Clause of the United States Constitution. See Art. I, §4, Cl. 1; Art. II, §1, point 2; Moore v. Harper, 600 U.S. 1, 37 (2023). To prevent county boards of elections from following this interpretation in next week's election, petitioners are asking us to suspend the state Supreme Court's ruling or at least order the confiscation of ballots that could be affected by this interpretation.

So if these three Republican-appointed justices appeared to agree with the Republican challenge, or at least were not critical of it, why didn't they dissent? Alito further explained in the second paragraph of the opinion that the appeal was on technical grounds:

The application of the State Supreme Court's interpretation in the upcoming election is a matter of significant importance, but even if we were to agree with the petitioners' federal constitutional argument (an issue on which I cannot express an opinion at this time), we would not be able to prevent what consequences they may have fear. The lower court's ruling affects only two votes in the long-concluded primary elections in Pennsylvania. A stay of this ruling would not impose a binding obligation on any of the Pennsylvania officials responsible for administering this year's election. And in this case, because the only state election officials are the parties that are members of the board of elections in a small county, we cannot direct other boards of elections to confiscate the affected ballots. For these reasons, I agree with the decision to reject the application.

Note that, having previously called the state's ruling “controversial,” he considers the issue raised in the appeal to be “significantly important.” Although, as Alito writes, he expresses no opinion on the merits of the Republican argument, the three justices do not reject it. If anything, one could expect them to endorse this and encourage further challenges in this election.

Of course, this statement only came from three justices, which is not enough to move the court. That raises the question of what the other three Republican nominees — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — would do if faced with a similar appeal in a case that does not raise the issues raised by Alito . Roberts, Kavanaugh and Barrett have found themselves in the relative middle of the court on some of the court's most important issues these days — and this election is no exception.

We shouldn't have to infer from silence what the court is up to. That makes a decision like the one in Virginia last week worrisome.

It would be helpful here if the court would comment even briefly on these urgent appeals. We shouldn't have to 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 without explanation because of dissent from the court's three Democratic nominees. The majority's silence in the Virginia case was arguably worse than in the Pennsylvania case, as emergency relief was granted in Virginia in a case in which lower court judges explained why they denied such relief.

But while a majority of the Supreme Court has not shown a willingness to side with Republicans in all appeals cases so far this election season, Friday's statement could signal that at least three justices are ready to do so when it matters most.

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