Roberts’s majority opinion in
Moore, however, included a cryptic line creating an exception to the rule that state courts have the final word on questions of state law. “[S]tate courts,” Roberts wrote, “
may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
Moore, however, did not explain what, exactly, it means to “transgress the ordinary bounds of judicial review.”
As a practical matter, that means that Moore gave the US Supreme Court an unprecedented new power to overrule state election law decisions that at least five justices don’t like. It also means that Moore shifted a great deal of authority to the Republican Party — Republicans have a 6-3 majority on the US Supreme Court and Moore means that any five of these Republicans can reverse a state court decision that benefits Democrats.
The question in Genser is whether the Republican justices will use this self-given power, for the first time, to give Donald Trump an unfair advantage in Pennsylvania.