If you thought Roe v. Wade was a gamechanger and a hot button political topic, hold my beer. The Supreme Court has heard oral argument on Moore v. Harper, which articulates a fringe theory that state legislatures are all powerful and completely autonomous. An opinion piece in the in the New York Times characterizes it thusly:
To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government.
If decided wrongly, this case could be the linchpin that the far-right proponents of the Big Lie have been looking for. This is John Eastman’s brainchild and he’s on the verge of a criminal referral from the January 6 Committee, so that gives you a clue. Listen to Nicole Wallace’s thumbnail sketch and then read Michael J. Luttig’s in depth analysis of the matter.
"The very future of our election system hangs in the balance today, on a knife's edge, in what's been described as the most important case for American democracy… The Supreme Court heard oral arguments in a case called Moore v. Harper" pic.twitter.com/Ggvn7bpkHh 02
— Tomthunkit™ (@TomthunkitsMind) December 11, 2022
This could make a state legislature, in essence, “a Constitution-free zone, where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say,” to again quote the New York Times.
Michael J. Luttig has analyzed this case, which he characterizes as “the most important case for American democracy in the almost two and a half centuries since America’s founding.” Now stop everything and think about that for a moment. This is Michael J. Luttig talking. You well recall his testimony before the January 6 Committee where he paused to consider ever single word he uttered. This is not a man who is given to hyperbolic or careless speech. UpVoteVA:
In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.
Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.
I don’t know about you, but that first paragraph scares the living hell out of me. The Times is correct in characterizing this as a “Constitution-free zone.” Justice Luttig continues,
The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.
That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.
It is sheer madness. It does not hold up even on a common sense level, let alone a legal level, let alone on a scholarly constitutional law analysis plane.
And then it gets even whackier. The way the case is written, it asks for a reversal of the burden of proof.
Proponents of the independent-state-legislature theory argue that, because the elections clause does not assign this legislative role to the state governors and courts, the burden is on those who argue against the theory to come forward with compelling evidence that the Framers intended state courts to review state-legislative election laws. But that’s to reverse the burden of proof. Because there is no evident support at all for the theory, the burden instead is on those who argue for the theory to come forward with compelling evidence from the text, structure, or design of the Constitution, or from the history at the time of the framing or founding, that confirms that the Constitution conferred on the state legislatures judicially unreviewable authority to redraw congressional districts. The proponents of the theory have not carried this heavy burden to date, and they cannot possibly carry this burden in Moore v. Harper.
I am relieved that Justice Luttig reaches this conclusion. Read his entire analysis on the UpVote VA website linked to above. The Times goes on to point out,
Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.
At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”
Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.
You would think that, on these facts, the case would have been resolved in a lower court. But that didn’t happen and so now it’s before the Supreme Court, whose approval rating has dropped to historic lows, due to the rendering of aggressively partisan opinions. Now, we have another situation where the uber conservative justices, Alito, Gorsuch, and Thomas, appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case, according to the Times. And Kavanaugh may jump on the bandwagon too.
As I said, we thought Roe v. Wade was earthshaking. That was before this one came along. If the Supreme Court eradicates democracy as we know it with a stroke of a pen, I don’t know what we do next.
It’s terrifying that this case was even heard. It only takes four votes of the Justices to grant Cert to a case but that there were even four who did so is scary. One might hope that some (it might have been more than four) voted to hear the case in order to knock it the hell down. But I’m pretty sure that’s whistling past the graveyard.
What surprised the hell out of me and continues to do so isn’t the number, variety and quality of those speaking out and writing briefs in opposition. It’s that Leonard freaking Leo is one of the people opposed to this bullshit! Leonard Leo! The Federalist Society, the fuckwad reactionary organization responsible for all the RWNJ fuckery of activist conservative judges and Justices, who has spent DECADES creating the judiciary (they are active at the state as well as the federal level) and SCOTUS we now have is dead set against this. When THAT sumbitch steps up publicly and says this “legal theory” is a giant load of bullshit you know just how fucked it is that assholes like Scalia are publicly defending it outside of SCOTUS proceedings. Kavanaugh is on board of course (he pushed it during Bush v Gore which he helped out on) and you know Thomas is. Roberts probably might have liked to do his typical job of whittling at the law to give a bit of something-something to those who can advance the ball in years to come but he’s probably horrified and will want to put a cork in this. Barrett is likely to be the swing vote. Ouch.
If the Justicess had ugly debates in their morning conferences while Roe was being overturned this will make those debates look like garden parties!
Scalia? that would be tricky
I can guarantee that Alito and Thomas were tow who voted to hear it. Probably Beer Kav and Gorsuch were the others.
That IS interesting, Denis, about Leonard Leo. It suggests the continuing lack of unity from the Republican party as well as an opening to do a needed overhaul of the SCOTUS. Can we please quit pretending that anything they decide will be set in stone in the meantime? It goes the wrong way, it will cause problems, yes. But if you’re really looking for an excuse to give up, well, just do it already. You can thank the rest of us later.
Not giving up. On the contrary. You’ve brought up an important point in noting that what the Roberts Court is now doing will cause problems (bad ones) for a time but it’s coming with unintended consequences. Their overzealousness has been destroying the legitimacy of the institution and with it respect for precedent. If because of the breathtaking overreach respect for precedent goes by the wayside, if Stare Decisis becomes a quaint concept like the old-school courtesies of the Senate have become then future courts can turn around as soon as the balance goes the other way and undo what these asshats have been doing. This is what has Leo alarmed I think. The Federalist Society has worked hard to have enormous influence but also to keep a low profile and unlike so much in the modern era that’s taken hold in our lifetimes was always a (very) long-term project. Roberts becoming Chief Justice was a crowning acheivement for them as he was so young, and would employ a Renquist strategy of incremental change in the law in most instances albeit stepping up the concept.
When one considers it’s always been about more than SCOTUS, that The Federalist Society has been hard at work stacking lower federal judicial positions with their disciples as well as state courts, law schools and legislatures AND the fact that most of law is adjudicated by appellate courts AND Roberts influence reducing the number of cases (not just the type but how many) they put on the docket in the first place the mad power grab of recent years is bringing unwanted attention. The spotlight is the last thing Leo and The Federalist Society want. The stunt with getting Gorsuch on the Court was a gamble but they took it. And at first having Trump seemed a godsent to them because McConnell could (and did) push through an astonishing number of appointments. Even forcing out Kennedy was something of a gamble but I doubt they realized Brewski Brett would turn out to be the toxic shit-bomb he was. Sure, they knew about his history but these are a bunch of privileged mostly white men who have their own “boys will be boys” “youthful” antics and who assumed it could all stay safely hidden. Of course it didn’t and I’m betting they pleaded with Kavanaugh to walk away. Sadly, like Thomas he stuck it out, and also like Thomas with a giant fucking chip on his shoulder. And he’s going to inflict punishment on everyone else for having his personal misdeeds exposed. Revenge for the public humiliation will influence his work till they carry him out of the SCOTUS building in a body bag.
So there’s that, and his affiliation with the Federalist Society AND his involvement as a grunt lawyer that worked on Bush v Gore and his even then advocacy in that case for this horseshit “Independent Legislature Theory” is again calling unwanted attention to Leo’s Federalist Society baby. Finally, the breathtaking hypocrisy with ramming through Barret’s confirmation while early voting was already underway has probably forever wounded the credibility of SCOTUS. I think Leo knew that a full overturn of Wade would risk the GOP regaining control of the Senate and likely result in Democrats getting full control. No more power sharing agreement. Committees, including Judiciary can operate normally and they guy who SHOULD be Chair (Durbin is an asshole for insisting he get the post) Sheldon Whitehouse is going to have a LOT more free reign in the next two years to expose The Federalist Society and what this SCOTUS has been up to and where it’s headed since Roberts has lost control.
Leo spend decades on his project, and in as many years the antics of a few of his installees on SCOTUS could bring it all crashing down, or at the very least neutralize it. And that’s why he’s publicly (now) weighing in against some of the very people who wouldn’t be where they are without him.
Now, I do not overestimate the ignorance of the 6 political hacks currently resting their asses (and therefore their brains) on the S.C. bench. That said, surely even those idiots realize they would also be throwing away, with both hands, all power the S.C. has to decide anything ever again-after all, if a state legislature is so fucking all powerful, a federal court has no power. Surely they also must realize their lives would not be worth a plugged nickle if they were to state such rampant asininity was the law of the land. Of course at that point taking their lives would not even be a criminal matter.
Which of the 6 morons decided this case needed to be heard? It is way past time to impeach thomas, gorsuch, beer bong and the vagina.
Maybe we’re looking at this wrong. Maybe, just maybe, this is about putting the issue to bed for at least a generation by rejecting it outright.
“The vagina?” Really Spike?
IANAL, but I’d certainly put this question to any potential supporter of this ridiculously absurd theory on the Supreme Court: Would a SCOTUS decision to uphold the “Independent State Legislature” be considered precedent enough for the US House of Representatives and US Senate to decide that the Supreme Court can ONLY hear cases that the two Houses of Congress allow the Court to hear? Why should state legislatures be able to decide that their courts’ ability to hear cases on electoral matters be any different from, say, another potential “Bush v Gore” being heard by the Supreme Court? In 2000, Republicans held majorities in both the House and Senate. Just suppose the GOP Congress had decided that SCOTUS (even with its right-wing majority) did NOT have the authority to hear the case at all?
SCOTUS has always been insanely jealous of its power and would NEVER accept any suggestion that Congress or the President should be able to do anything that the High Court could not exert some oversight. Even the most extreme members have maintained that the Court is an equal partner and that there is absolutely nothing that cannot come before them when it comes to matters of either the Legislative Branch or the Executive Branch seeking to exert “undue” power. So it would seem even more hypocritical of the extremists (especially as they describe themselves as supporters of Constitutional “original intent”) to permit a State legislature to become an unchecked (or uncheckable) power.
The NC GOP legislators backing this idea should remember they might not always retain power at crucial moments and that there’s a possibility that the Democrats might regain legislative control in time to award the state’s electoral votes for the Democratic candidate even if a slight majority of voters had selected the GOP candidate. And we ALL know the state’s GOP would never accept that decision (of course, they’d have absolutely no recourse to the issue).