Editor’s Note: Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law. He is a CNN election law analyst. The views expressed in this commentary are his own. View more opinion on CNN.
In the most important pre-election case this year, Chief Justice John Roberts once again appears to have decided that, for the Supreme Court, discretion is the better part of valor.
After sitting for a remarkable several weeks on a Pennsylvania election-law case – the longest the Court has taken with any election case this year – the Court in the end chose to say nothing at all. Instead, it simply released a 4-4 order rejecting the Republican Party’s effort to overturn a decision of the Pennsylvania Supreme Court, a decision that permits absentee ballots to be counted even if received three days after Election Day.
The Court’s silence here is exceptionally wise. Often when divided 4-4, the justices do not write, but, at times, at least some of them do. Why did Chief Justice Roberts and the justices who voted with him not explain their reasons? Why did the other conservative justices, in dissent, not speak either? The reason, paradoxically, is likely precisely because the stakes were too high to say anything at all; the issues are too momentous; the election too imminent.
This case has a clear link to Bush v. Gore: It centered on an issue that Bush v. Gore had addressed but not fully resolved. That is almost certainly why the Court spent so long trying to figure out how to handle the case. And also why Roberts might have suppressed his probable agreement with the dissenters: to preclude the Court from deciding such consequential issues, implicitly or explicitly, on the eve of the election.
The monumental issue in the case was what the word “legislature” means in the Constitution. That might sound simple, but the answer has ramifications that reverberate throughout the Constitution. That’s because the term “legislature” appears in the Constitution 17 times. Each time it does, the legal question is whether “legislature” is best understood to mean (1) the ordinary lawmaking processes of a state or (2) only the formal institution of the legislature itself. That is a fundamental question of political power and who has it.
If the Constitution gives these powers to the formal institution of the legislature alone, that means state legislatures would be free of many of the normal constraints when they exercise these unique powers the Constitution assigns them. And these powers are central to control over the democratic process. The Constitution, for example, gives the state “legislature” the power to regulate national elections. It also gives the “legislature” the power to decide how to structure presidential elections. The question the Pennsylvania case posed is exactly how much power legislatures have to do that.
State constitutions normally, of course, limit a legislature. Suppose, though, a state constitution requires seven days of early voting in national elections. Yet, if only “the legislature” can regulate national elections, the state constitution would be of no effect; a legislature that preferred a different number of days of early voting would be free to impose that policy.
This was the claim of the Republican Party in Pennsylvania. The state’s election code as enacted by the legislature requires absentee ballots to be received by 8 p.m. on election night. But the state court held that in these unusual times the state constitution required that deadline to be pushed back three days. If only “the legislature” can regulate the presidential process, as the Republican Party claimed, the legislatively-chosen deadline of election night would have to prevail.
Here’s another example, from a case the Court has decided already. Arizona, like many states, permits voters to enact state law through what’s known as direct democracy. Through that process, voters in Arizona created an independent commission to draw congressional districts, rather than have the state legislature do so.
But the Constitution gives the “legislature” the power to regulate congressional elections. If that means the lawmaking process of the state, as the state defines it, then voters can regulate these elections, including by requiring that commissions draw districts. But if it means only the formal institution of the legislature, then voters have no power over these issues.
In a 5-4 decision that Justice Ruth Bader Ginsburg wrote five years ago, the Court held that “legislature” means the general lawmaking process of a state. That meant a state can give voters the power to regulate national elections. But who wrote the impassioned, vehement, lengthy dissent for four Justices, arguing that “legislature” means just the institution? Roberts.
That is why he almost certainly believes, as a matter of first principle, that “legislature” means the institution, nothing more. And that belief would have led him to a 5-3 decision blocking the Pennsylvania Supreme Court decision and re-imposing the legislature’s election night deadline for absentee ballots.
But a 5-3 decision doing that would have led Biden supporters to believe the conservative majority was aligning with the Republican Party, for partisan reasons, in favor of restrictive absentee ballot rules – in a critical swing state like Pennsylvania. On top of that, the Court might well have felt obligated to explain its reasons for such a significant action. That would have required the Court to resolve the meaning of “legislature,” with all the implications doing so would entail.
In suppressing his almost certain view about the proper meaning of the Constitution, Roberts chose to let these issues, like sleeping dogs, lie – at least for now. A 4-4 decision says nothing. It settles nothing. Surely a tough vote for the Chief Justice, but exactly the right call, on the eve of an election that is roiling the country like few others.