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

The Supreme Court on Friday rejected a Republican appeal to prevent certain Pennsylvania votes from being counted in the battleground state. As happens all too often in urgent appeals the court provided no explanation. The only published thoughts on the matter came in a brief statement from the Justice Department Samuel Alitojoined by fellow GOP appointees Clarence Thomas And Neil Gorsuch.

Alito’s separate writing 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 the two-paragraph statement started:

This case concerns a recent Pennsylvania Supreme Court decision that provided a controversial interpretation of key provisions of the Pennsylvania Election Code. Specifically, the court ruled that a provisional ballot must be counted even if the voter previously submitted an invalid ballot within the time required by law.

Note that Alito characterized the state court’s action as controversial, suggesting that he disagreed with it, even though he did not disagree with the court’s dismissal of the challenge to that action. He then uncritically described the GOP challenge:

Petitioners argue that this interpretation ignores the plain meaning of the state election code, see 25 Pa. Cons. Stands. §3050(a.4)(5)(ii) (2019), and that the interpretation is so remote that it also conflicts with the Electors Clause and the Electors Clause of the United States Constitution. See art. I, §4, col. 1; Art. II, §1, col. 2; Moore v. Harper, 600 US 1, 37 (2023). In an effort to prevent county election boards from following this interpretation in next week’s election, the petitioners ask us to stay the state Supreme Court’s ruling or at least order the seizure of ballots that might be influenced by that interpretation.

So if these three Republican-appointed judges were apparently sympathetic to—or at least not critical of—the Republican challenge, why didn’t they disagree? Alito further explained in the second paragraph of the statement that the appeal was on technical grounds:

The application of the Supreme Court’s interpretation to the upcoming election is a matter of considerable importance, but even if we agreed with the petitioners’ federal constitutional argument (a question on which I express no opinion at this time), we could not avoid the consequences they fear. The lower court’s ruling affects just two votes in Pennsylvania’s long-completed primary. Delaying that judgment would not impose any binding obligations on the Pennsylvania officials responsible for the conduct of this year’s elections. And because the only state election officials who are parties in this case are the members of the board of elections in a small county, we cannot direct other election boards to seize the ballots at issue. For these reasons, I agree with the decision to reject the application.

Note that, having previously described the state ruling as ‘controversial’, he considers the issue raised in the appeal to be of ‘significant importance’. So even if, as Alito writes, he offers no opinion on the merits of the Republican argument, the three justices do not reject it. In any case, one could say they endorse it and encourage further challenges in these elections.

Of course, this statement only came from three judges, which is not enough to move the court. That raises the question of what the other three 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 were in the relative center of the court these days on some of the most important issues – and this election is no exception.

We should not infer from its silence what the court intends. That makes a decision like last week’s in Virginia troubling.

At this point, it would be helpful if the court would explain itself, even briefly, in these emergency cases. We should not infer from its silence what the court intends. That makes a decision like last week’s in Virginia, where the majority is in control, troubling enabled the state’s voter purge due to 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 emergency relief was granted in Virginia in a case in which lower court judges explained why they rejected such relief.

But while a majority of the Supreme Court has so far shown no willingness to intervene for Republicans on every appeal this election seasonFriday’s statement could indicate that at least three justices are willing to do so if push comes to shove.

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