That was the litigation tactic adopted by Michael Turzai and Joseph Scarnati, two Republicans who are respectively the speaker of the Pennsylvania State House of Representatives and the President of the Pennsylvania State Senate, in an emergency stay application filed with Justice Samuel Alito. The application asked Alito to block a decision of Pennsylvania’s State Supreme Court. That decision—rendered as an order on January 22 and explained in a lengthy opinion on Thursday—invalidated the system of U.S. House districts approved by the Republican legislature for election of members of the U.S. House next fall.
The state court held that the partisan nature of the district plan violated the Pennsylvania Constitution’s requirement of “free and equal” elections. The court ordered the legislature to draw up a new congressional district plan in time for the congressional elections this November.
Every first-year law student knows federal courts have no authority to overrule a state’s Supreme Court about what that state’s constitution means. “[W]hile a state court’s construction of a state constitution would ordinarily not be this Court’s concern,” the stay application said, “where a state court’s purported interpretation is not interpretation at all, but rank legislation at the expense of the branch of state government charged with legislation under federal law, this court is both empowered and duty-bound to intervene.”
The reference to “federal law” is special, because the petition was asking the Supreme Court to ignore a case it decided a mere three years ago. In that earlier case, Arizona Legislature v. Arizona Independent Redistricting Commission, the Court, 5-4, indicated that unless Congress forbade it, states had the power to set up congressional redistricting under their own constitutional systems. The Arizona legislature’s Republican majority had argued that a constitutional provision stating that “the times, places, and manners” of holding congressional elections shall be set by state legislatures at their sole discretion, regardless of the provisions of their state constitutions. The court’s majority disagreed: “Nothing in [the Time, Place, and Manner] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”
In general, the Pennsylvania officials’ argument was so weak that it hardly seemed like a legal argument at all. Those of a cynical turn of mind might read it as, “we know you’re not supposed to, but we are putting ‘federal law’ in italics, bro, because we really really need you to help us out—because otherwise we might lose as many as six House seats.’”
Alito rejected the application on his own, without referring it to the full court; as Amy Howe noted in SCOTUSblog, this “strongly suggests that he did not view the case as an even remotely close call.”