Justice Samuel Alito sits during a group photo of Supreme Court justices in Washington, DC on April 23, 2021. (Erin Schaff-Pool/Getty Images)

Friday afternoonJust as reporters were adjourning, the Supreme Court dropped a hint about whether it would take up cases that could determine the outcome of a close election in the coming weeks. Specifically, the hint came in a statement from Justice Samuel Alito. Spoiler: he’s open to it.

Alito’s letter came as the Supreme Court refused to take up a case on mail-in ballots in Pennsylvania. The Republican National Committee had asked the court to throw out a Pennsylvania Supreme Court decision that allowed voters who had forgotten to place their mail-in ballot in a secrecy envelope to vote with a provisional ballot. By declining to weigh in, the Supreme Court allowed some valid Pennsylvania voters who made a mistake by returning their mail ballots to Still vote. The Republican National Committee had asked the United States Supreme Court to stop them.

In response, the justices unanimously refused to disenfranchise these voters, creating the impression of a victory for Democrats and expanded voting rights. Technically, this is TRUE. But in a sign of whether the justices intend to meddle in the outcome of the election, the message was muddled by Alito’s statement. writing.

Normally, the justices would not have considered such a case, because the Supreme Court is not supposed to second-guess interpretations of a state law by state courts. But these are not normal times. Last year, the justices decided that it was within their jurisdiction to question state courts whether the state law they were interpreting related to elections. In Moore vs. Harper, the Supreme Court gave itself the authority to intervene in matters of state election law if a state court’s decision “transgressed the ordinary limits of judicial review” at the expense of the state legislature. It’s a vague and untested standard, and this is the first choice under this new precedent. The Supreme Court has now become a Sword of Damocles hanging over every state court decision regarding election procedures.

In a statement accompanying the court’s order, Alito agreed with the rest of the justices not to take the case but he wrote it down to the facts of the case, which he said limited the court’s ability to grant the RNC the requested relief from banning provisional ballots for voided mail-in ballots. judges Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, problems with the facts have not stopped the court’s conservative wing from taking on and deciding any case it wanted. there is the website designer who wanted to discriminate against a client who did not exist; the soccer coach who stated that he prayed only when the images showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an entity that wanted nothing to do with the case. The tolerance of Robert’s court is not something that should be taken for granted. This was the show of moderation with the Pennsylvania case A sign that judges will not participate in the 2024 elections?

Probably not.

Alito noted that he and his two colleagues could reopen this specific dispute and others like it in the coming weeks if another case were filed. He called the Pennsylvania Supreme Court decision “controversial” and the issue at stake “a matter of considerable importance.” As legal journalist Chris Geidner notedThis language is “a sure signal from the trio to the Republican National Committee, Donald Trump and other potential litigants” and “clearly a trap.” If Trump or his allies wanted to file a new lawsuit after the election, at least three judges would be willing to take the case. The question is: would a majority, as was proposed in this case, be willing to deny people the right to vote? A framework for analyzing a possible answer is comparing the 2000 elections with those of 2020.

In 2000, the presidential election came down to a few thousand votes in Florida. It was unclear who the ultimate winner would be if all of Florida’s votes were counted, but as of mid-December, George W. Bush had a 537-vote lead. The Florida Supreme Court had ordered a statewide recount of certain votes, so the Bush campaign asked the Supreme Court to intervene. So when the judges stopped the recount with a 5-4 decision, they handed the election to Bush in Bush vs. Gore. In fact, they elected the president in what was a complicated situation.

In 2020, on the other hand, there were many pleas for federal courts, including the Supreme Court, to throw out the ballots and hand the election to President Donald Triumph. Efforts to contest the election came days and even weeks after it became clear that, with nearly every swing state declaring Joe Biden the winner, this was not an undecided election. It was, except for a very important judicial interference, an insurmountable clue, and despite its Protests, Trump had lost. In such a situation, the intervention of the Supreme Court would have put the reputation of the court at risk. Why help Trump when that would have only given Biden, who would become president, a very good reason to consider judicial reform?

If tomorrow’s results look like a Bush vs. Gore scenario, particularly if the unique oscillation state of Pennsylvania looks like the new Florida, the court’s right flank may have a chance to help elect Trump. After all, the court has taken multiple steps to help Trump retake the White House, notably by sinking his criminal trial for his role in the January 6 insurrection. They have also shown a willingness to help the Republican Party in its recent decision allow Virginia to remove voters from the rolls contrary to federal law. Interfering again would be a continuation, not an aberration.

But if tomorrow’s results look more like 2020, and within a few days Harris is the clear winner, most judges might consider it unwise to take a chance on Trump. Famous, Trump he doesn’t like it be associated with “losers.” The judges may feel the same way.