Which brings us back to Friday night — and the set-up aspect of Alito’s statement.
Alito revealed that, in the wake of Roberts’s “middle ground” note in Moore, he, Thomas, and Gorsuch were open, in the context of Tuesday’s general election, to considering in a future case whether the Pennsylvania Supreme Court had gone too far.
They signaled, in other words, that they think that the Pennsylvania Supreme Court’s decision might very well be the type of decision that Roberts was talking about.
Given Thomas and Gorsuch’s views in Moore, their being open to this argument isn’t a surprise. That Alito wrote it is not exactly a surprise, what with him being Alito and all, but it did represent a closer-to-the-merits position than he had taken in Moore. Additionally, in his first writing on the topic, he was joined by the two justices who backed the “independent state legislature” scheme — suggesting they think he’s on the right side of this argument. Finally, and despite claiming that he was not expressing a view on the merits of the RNC’s claim, Alito did call the state court’s decision “controversial,” which at least signals a view on the merits.
The question — as it so often is given the makeup of the current court — is whether another justice would even want to take up the matter and, if so, whether two would join the trio to make a majority decision for the U.S. Supreme Court ruling that the Pennsylvania Supreme Court, in interpreting state law, went too far.