The Supreme Court Friday rejected a Republican appeal to prevent some Pennsylvania votes from being counted in the battleground state. As happens too often in emergency appeals, the court did not explain. The only published thoughts on the matter came in a brief statement from the Justice Department. Samuel Alitojoined by other GOP appointees Clarence Thomas And Neil Gorsuch.

Alito’s separate writing was not dissent. But he chose to write it, and two judges chose to join in. It is therefore worth analyzing the possible significance and impact on what could be a close election.

This is how the two-paragraph statement began:

Note that Alito called the state court’s action controversial, suggesting his disagreement with it, even though he did not disagree with the court’s rejection of the challenge to that action. He then uncritically described the GOP challenge:

So if these three Republican-appointed justices were apparently supportive – or at least not critical – of the Republican challenge, why didn’t they disagree? Alito went on to explain, in the second paragraph of the statement, that it was for technical reasons during the call:

Note that after calling the state’s decision “controversial,” he considers the issue raised by the appeal to be of “considerable importance.” So even though, as Alito writes, he does not express an opinion on the merits of the GOP’s argument, the three justices do not reject it. On the contrary, they could be seen as endorsing it and encouraging further challenges in this election.

Of course, this statement only came from three judges, which is not enough to move the court. This raises the question of what the other three Republican appointees – Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – would do if faced with a similar appeal in a case that did not raise the problems reported by Alito. Roberts, Kavanaugh and Barrett have been in the relative midfield these days on some of the most important issues – and this election is no exception.

This is where it would be helpful for the court to explain itself, even briefly, in these emergency appeals. We should not have to infer from silence what the court is doing. This is what makes a decision like last week’s in Virginia, where the majority authorized the purge of state voters following the dissent of the three Democratic members appointed by the court without explanation. The majority’s silence in the Virginia case was arguably worse than in the Pennsylvania case, because in Virginia it granted emergency relief in a case in which lower court judges explained why they had rejected such a measure.

But even if the majority of the High Court has so far shown no willingness to intervene in favor of the Republicans in every appeal this election seasonFriday’s statement could indicate that at least three justices are willing to do so when it counts.

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