Michael Dorf asks how the Court’s decision in Espinoza, which prevented the Montana supreme court from “leveling down” to avoid discrimination — i.e., shutting down an entire scholarship program to avoid sending money to Christian schools — can be squared with Palmer v. Thompson, which allowed the Jackson, Miss., city council to shut down the city’s swimming pools rather than integrate them:

[W]ith a few notable exceptions, ever since the landmark decision in Erie RR v. Tompkins, federal courts are supposed to treat state law the same, regardless of whether it emanates from a state legislature or a state court. Accordingly, perhaps we shouldn’t read CJ Roberts to be saying that the Montana legislature could have eliminated the program for exactly the same reasons that the Montana Supreme Court did. . . . The majority’s response to Justice Ginsburg implicitly creates tension with either Erie or Palmer. If the Montana legislature could have done what the Montana Supreme Court is barred from doing by the SCOTUS, there’s tension with Erie‘s rule that state courts are as authoritative on state law as state legislatures. But if the rule is the same for the Montana legislature and the Montana Supreme Court, then that rule — government cannot level down if en route to the leveling down decision, it discriminates on an illicit basis (like religion or race)– contradicts Palmer.

Dorf offers three possibilities:

1. Erie states a general proposition, but it is not quite true that state courts and state legislatures are always treated identically for federal constitutional purposes. Various provisions of the federal Constitution take for granted the existence of separate branches of state government. That fact was the basis for the controversial concurrence in Bush v. Gore . . .
2. Or perhaps Palmer is no longer good law. In this view, if it were possible to prove that a legislature actually took the steps that the Montana Supreme Court took, then its action would be invalid. . . . Yet . . . the Court hasn’t actually overruled Palmer yet . . .
3. Perhaps the best explanation is that CJ Roberts does not regard the flaw in the Montana Supreme Court process as analogous to the illicit intent in Palmer. . . . Thus, the state law ruling is reviewable as resting on the federal ruling. . . . Footnote 4 of the Espinoza majority opinion pretty clearly implies that on remand the Montana Supreme Court must reinstate the scholarship program, although the Montana legislature could repeal it. But then we’re back to Explanation (1), which runs into Erie. If the Montana legislature can repeal the scholarship program in its entirety, then presumably the Montana Supreme Court can decide that (a) the original program violated the state no-aid clause; (b) but giving aid to secular schools while withholding it from religious ones violates Free Exercise (because the SCOTUS says so); and therefore (c) as a matter of state law the program is invalid.

Now, I agree that Palmer is, and should be, on some shaky ground, especially since the city council’s decision in that case was in direct response to a federal court order, but as I explained yesterday, the simplest answer is that (1) and (3) are not really different. The theory of Palmer is not necessarily that the discriminatory motives of the city council are irrelevant, but that it opens a Pandora’s Box for courts to start examining the motives of political actors, who can make decisions for any number of reasons. When a state court reads a discriminatory state constitutional provision to mean what it says and require “leveling down,” there is no such problem: The discriminatory motive is right there in the state court’s explicit legal reasoning, and it emanates from a discriminatory action taken by the state constitution. This does no violence to Erie. The theory of Erie is that a state-court decision (whether on state common law or state statutory or constitutional law) is final and binding on federal courts — a conclusion Espinoza not only respects, but depends upon (the Court did not question that the Montana supreme court’s conclusion that its decision was dictated by the state’s Blaine amendment). That does not mean, however, that federal courts must be blind to the difference between how courts and legislatures operate and make decisions.

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(As for Bush v. Gore, as Dorf alludes to, that’s a different animal in any event because — a point we may return to shortly in the faithless-elector cases now before the Court — Article II of the Constitution does not say that the states direct how their electors are appointed; it says explicitly that “the Legislature” of each state does so. Erie, as a decision grounded in the implicit structure of federalism, cannot trump the explicit text of Article II.)