Comment: Chief justice most focused on court’s legitimacy

By Noah Feldman / Bloomberg Opinion

Chief Justice John Roberts is bending over backward to try to show that the Supreme Court is nonpartisan when it comes to the 2020 election.

The latest evidence is his vote in a 4-4 decision that, because it was a tie, upheld a decision by the Pennsylvania Supreme Court extending the deadline for counting mail-in ballots for three days after Election Day.

In my view, Roberts got the law right. And it is certainly true that the 4-4 tie shows how the court’s election decisions could potentially be affected by the confirmation of Judge Amy Coney Barrett.

But there is another takeaway, one that liberals and conservatives would do well to keep in view: An alternative decision overturning the Pennsylvania ruling would not have been crazy.

That’s because the Pennsylvania Supreme Court decision could itself be interpreted as partisan. It interpreted Pennsylvania law against its plain meaning. To be clear, I think Roberts was right not to revisit the Pennsylvania court’s judgment. It was a state court decision interpreting a state statute, and the Supreme Court is supposed to accept a state court’s interpretation of its own law. But the alternate view, namely that the Pennsylvania decision violated federal law by deviating from the requirement that votes be cast by Election Day, was plausible, even if it wasn’t the best interpretation of what was going on.

I realize — all too well — that in the heat of the election season, no one wants to hear the message that Roberts was correct but that the alternative would also have been defensible. Democrats just want to fret over the possibility that the Supreme Court will give the election to Trump. Republicans just want to declaim on the outrageousness of Roberts’s apparent defection to the left, driven by his desire to maintain the Supreme Court’s legitimacy. The reasonable middle position has exactly zero friends in the pre-election frenzy.

But the whole point of the Supreme Court is that we aren’t supposed to want it to be a partisan tool. Roberts should be seen as a hero, not because he is for the moment giving the liberals what they want, but because he is trying to steer the Supreme Court on a course that will avoid its delegitimization.

To see what I’m getting at, you have to start by doing what almost no one will: at least considering what the Pennsylvania Supreme Court did. The relevant part of its opinion relates to the Pennsylvania state law that says mail-in and absentee ballots must be returned to the local election boards by 8 p.m. on Election Day.

As written, the law is clear. And it doesn’t provide for exceptions. The Pennsylvania Supreme Court acknowledged as much.

But the majority of the Pennsylvania court ruled that, if the law as written were applied without an exception under the specific factual circumstances of covid-19, a huge increase in mail-in voting, and potential U.S. Postal Service delays, that could undercut individual voters’ right to vote under the Pennsylvania Constitution. The court therefore deployed its power under the state constitution to craft a remedy: namely a three-day extension in how long mail-in ballots could still be received.

For an activist state Supreme Court, the decision is within the realm of reason. The court described the current situation as an emergency akin to a natural disaster. And state courts are capable of exercising substantial discretion in assuring that state constitutional provisions are followed.

Yet at the same time, it remains a fact that many more Democrats than Republicans have requested mail-in ballots in Pennsylvania. Extending the deadline will almost certainly help Democrats more than it will help Republicans. And as a matter of state law, it would have been totally plausible for the court to say that the written legal deadline is the written legal deadline.

The state legislature is ordinarily the body charged with setting the rules for state elections. In an emergency, the state legislature could have changed the rules. It didn’t. The Pennsylvania Supreme Court was assuming, if not usurping, the power to make the rules.

Before the U.S. Supreme Court, it would have been within the realm of reason to say that the Pennsylvania court’s decision broke the federal law that requires the election to be held on Election Day. It’s conceivable that there might be circumstances in which people could hand-deliver ballots cast after 8 p.m. on Election Day and get them counted.

It is crucial to understand that the Supreme Court wasn’t ruling on whether the Pennsylvania court got it right as a matter of Pennsylvania constitutional law, but only on whether there was strong reason to think that the Pennsylvania decision violated federal law. Nevertheless, the arguably partisan nature of the state court decision is part of the background music.

The upshot is that, had the U.S. Supreme Court gone the other way, it wouldn’t have been legally outrageous. Nor would it have been an electoral disaster. Pennsylvanians would simply have had to get their ballots in sooner. That’s frankly good advice for all voters who want their votes to count in this most important election.

John Roberts deserves admiration for fighting to keep the court nonpartisan. But it’s the nonpartisanship that matters, not the accident that in this case, the outcome was good for Democrats.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”