Opinion: John Roberts put the country before politics #Breaking112
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.
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.
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.