Has the Supreme Court Just Pulled Back From the Brink?

For those of you who are sensible enough not to follow all the machinations of the parts of our government that are really behaving very badly—that is, for people who’ve taken oaths to protect our democracy—the Supreme Court’s oral arguments about Moore v. Harper may not have been foremost in your minds. I understand.

So I’ll be as brief as I can here about a crucial issue.

Though the Supreme Court is supposed to hear cases based on decisions in the lower courts, particularly when different courts have issued contradictory rulings, this particular case did not wend its way via those routes. We might, silly us, think of such routes as precedents. This radical court is much more—dare I say—“liberal” in choosing their routes.

The Point Is…

There was no compelling reason for the Supreme Court to take this case, which is based not on actual case law, but on a theory. Its far-right proponents have been pushing this bit of theory since Chief Justice Rehnquist wrote a concurring opinion in Bush v Gore in 2000. Sometimes its advocates call it a “doctrine” to make it sound heftier: the Independent State Legislature Doctrine (ISL)

But it’s just a theory—and one that all but a few of the most far-right legal eagles decry as a lot of hooey. (See Brennan Center scholars’ discussion.) In fact, the Brennan Center has said this argument is:

“A breathtaking claim, and it’s made up. It’s not a ‘theory’–as NYU Law professor Melissa Murray puts it, it’s fan fiction. No state runs its affairs that way….James Madison would flip his powdered wig.

The ISL claims that the Constitution’s reference to the word “legislatures” refers solely to the powers of the legislatures per se concerning federal elections, and not to the courts, the governors, the secretaries of state, or any other governmental bodies.

In fact, the Supreme Court has declined to consider it a number of times, including in 2015 and 2019. But the same right wing forces that kept trying to overturn Roe for years and finally succeeded continue to push this anti-democratic “theory.”

The fact that the Court is even considering it motivated the revered retired conservative judge J. Michael Luttig, whose testimony before the January 6th Committee was so compelling, to serve as co-counsel for the Democrats.

Writing in The Atlantic, Luttig called it “the most important case for American democracy in the almost two and a half centuries since America’s founding.”

If the court turns this theory into acceptable law, state legislators could, without review,

“redraw congressional districts for federal elections and…appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the state.”

That truly could mean the end of our democracy.

What gave rise to this case? The Republicans in the North Carolina legislature, a state that was evenly divided between Democrats and Republicans, drew an outrageously gerrymandered map that gave the Republicans eleven seats and the Democrats four seats.

Though the 2020 Census had given the state one more Congressional seat based on new residents who were 90 percent people of color, the legislature both failed to acknowledge this reality with a new district and eliminated a historically minority-majority seat held by a Black Representative (G.K. Butterfield).

The North Carolina Supreme Court struck down the gerrymandered map as a violation of the state’s constitution, not once, but twice. The 2022 election was held with a North Carolina Court-approved map. Republican legislators took their case to the Supreme Court. They are opposed by individual North Carolina voters who felt disenfranchised by the legislature’s maps, Common Cause, and the North Carolina League of Conservation Voters.

At stake is the potential for rogue legislators to defy their state’s Constitution as it is defined by the state’s highest courts. You see the potential disaster here.

And why should we be concerned that the highest court in the land chose to spend its time on a theory-that’s-not-a-theory? Because earlier this year, at various times, Justices Thomas, Alito, Gorsuch, and Kavanaugh had expressed great interest in it.

Not incidentally, if Thomas had even a scintilla of integrity, he would have recused himself from considering this case, which is closely aligned to the claims by one-time Trump lawyer John Eastman that state electors who supported Trump in 2020 had the right to throw out all the more abundant votes for Biden and cast their Electoral College votes for Trump.

As you may recall, that’s the issue in which Thomas’s significant other, his best friend and wife Ginni, has been deeply implicated.

So it’s not surprising that a whole lot of court watchers have been deeply worried about what the Supreme Court will do in Moore v Harper.

Although there was a great deal of trepidation before the oral arguments, an interesting thing happened when they occurred two days ago.

Marc Elias, my election law guru, wrote in Democracy Docket that Chief Justice Roberts began questioning how the Moore lawyer could justify his position in view of previous Supreme Court rulings. (Precedents!)

Then, observed Elias:

“Significantly, Justices Brett Kavanaugh and Amy Coney Barrett expressed similar skepticism. Even Justice Clarence Thomas, usually a stalwart conservative, asked tough questions of Moore’s lawyer. Indeed, one of the most striking takeaways from the argument was how little even the most conservative justices came to the Moore lawyer’s defense.

“Notably, while Justice Samuel Alito voiced support for the Moore parties’ position, even he expressed some reservations. In the three-hour argument, it was only Justice Neil Gorsuch who seemed entirely comfortable with the Moore lawyer’s argument.”

Based on the questions, Elias (and others) have the sense that the majority on the court is seeking a “middle ground,” where they won’t endorse the theory but will say that “state courts could review state laws regulating federal election rules for compliance with state constitutions, but would need to adhere to the text of those constitutions in doing so.

To Elias, such a potential ruling would mean that

“state court election law decisions would be subject to an additional question. Did the opinion fairly reflect state law and the state constitution? While this would create new vehicles to attack pro-democracy court decision, in practice it would more likely lead to longer, more carefully written state court decisions rather than change the outcome in many cases.”

Does that mean the Court may decline to accept the ISL unreservedly, but allow the gerrymandered map that the North Carolina legislators drew over the objections of their state Supreme Court to stand?

If that’s the result, the Supreme Court Justices will have sacrificed the voting rights of Black North Carolinians while avoiding a much more far-reaching democratic catastrophe.

Though Elias cautions that the questions Justices ask aren’t always determinative, he felt that nearly all the Justices were seeking a way to avoid outright acceptance of the ISL and its dangerous implications.

Considering the damage that the Supreme Court could (can) do with this case, I guess we can be hopeful that in this instance they don’t seem as radical as we might fear.

But the case also reaffirmed how essential it is to our struggling democracy to pass Congressional voting rights legislation that doesn’t pretend—as Roberts claimed in beginning the rollback of the Voting Rights Act—that such protections against racial disenfranchisement are no longer needed.

How long must people of color–some of the most stalwart defenders of our democracy–wait for their government to confirm the sanctity of their votes, regardless of where they reside?

What do you think? Are the Justices who seem to be in the middle in this case—Roberts, Kavanaugh, and Barrett—showing they really do care how poorly most Americans view the Court? Or is this one case just a bridge too far?

Annie

30 thoughts on “Has the Supreme Court Just Pulled Back From the Brink?

  1. Rather than looking for a way to avoid outright acceptance of the ISL and its dangerous implications, the Court had better definitely reject it. I expect the Court will be cautious, but I fear that they will leave the question open. In one respect, The Constitution is clear to me–Congress can by law regulate elections as with the Voting Rights Act.

    There is no certain advantage to one party or the other in ISL; if one side can play dirty, so can the other.

    Liked by 2 people

    1. I share your view, William. They should strike it down–unanimously and forcefully. I think the fact that people like Marc Elias are encouraged that the majority is looking for a middle ground shows just how dire things have become on the court. And the Democrats clearly need to be tending to all those state elections with increasing attention and resources.

      Liked by 1 person

      1. The authors of a detailed article in “The Atlantic” argue for a middle ground–that state courts can block legislation but not usurp the legislature’s constitutional responsibility for redistricting. Thus in NYS’s 2022 redistricting controversy, the courts couldn’t have hired an expert to draw maps. In NY and other states, legislatures couldn’t delegate responsibility–independent redistricting commissions would be unconstitutional.

        I’m not happy with court-drawn districts, but independent, non-partisan redistricting commissions have worked well in some states; Michigan is an example.
        https://www.theatlantic.com/ideas/archive/2022/10/supreme-court-independent-state-legislature-doctrine/671695/

        Liked by 1 person

    1. What troubles me the most about the radical Supreme Court majority, Neil, is that they seem so oblivious to the extent to which their willingness to make such partisan rulings is offending the vast majority of Americans. Between the out of step decisions and the questionable ethics, they will eventually be “rewarded” by court reforms. I think it’s just a matter of time.

      Liked by 4 people

  2. I may be naive but I assume the conservative justices see the “theory” as unconstitutional and that their reservations are not motivated by a wish to increase their popularity.

    For what it’s worth, I prefer scientific theories like the theory of gravity, or evolution, or relativity. There’s nothing to interpret. They can be replaced with a better theory, but for all practical purposes they’re indisputable.

    Liked by 2 people

    1. Thanks, Carol. I sure hope you’re right, but a part of me also hopes that some of the public’s outrage about the Court’s departures from precedents and increasing use of the Shadow Docket will move them out of their bubble. Alito and Thomas’s disdain is particularly reprehensible, but if Kavanaugh and Coney Barrett display more willingness to listen and probe and vote accordingly, we could be spared some future appallingly radical rulings.

      And I’m with you in your list of preferences!

      Liked by 1 person

  3. Annie, I hope you are correct. There is a larger problem here for me. There seems to be too many cases that are jumping steps. I recognize some cases are timely in need, but for the most part cases should follow the painstaking process of going through the court system and never getting to the Supreme Court if justice is served. To me, this gives credence to cases that have not earned it.

    As a citizen of North Carolina, this case that made it to SCOTUS is disheartening as I have witnessed (and even wrote to some legislators) the cheating first hand that eventually led to this case being filed. In short, the folks who cheated want to be able to change the rules to not allow judges to determine if they cheated. Keith

    Liked by 1 person

    1. Keith: I’m totally with you about those “jumping steps.” I had two paragraphs in this post that I removed for length about the “303 Creative” case that the Court heard just before this one. It was bizarre that the Court took the case, which was a Colorado web designer’s objections to the state’s anti-discrimination laws. She claimed her first amendment rights were being violated because *if,* at some point, an LGBTQ couple requested she design a wedding site, she would be forced to do it. There was no case. No one had asked her. And she was talking about her speech, when she would simply be using a template that the couples would fill in, so it wouldn’t even be her speech. The Court majority appears to have something I would regard as mischief in mind.

      Good summary of the NC case. I’m always especially glad to hear from people closest to these issues–and always enjoy hearing of your using your voice to try to enlighten your elected officials!

      Like

  4. I fell to the floor in laughter when I read your last sentence. Throughout the article I kept thinking Market Garden. This court is way out over it’s skis. I think they (some) think they have the power to rule by decree. I think some new guardrails called ethic rules are going to be built, if not by them then by a co-equal branch. Overreach is not a bad lesson to learn.

    Liked by 1 person

  5. Like you, I read Elias’ piece a few days ago and was relieved. For a minute. Then, after listening to opinion after opinion, I wondered if some of the Justice’s questions were put out there for the sole purpose of them being able to say, “Look, we asked tough questions and were satisfied with the answers.” Without trying to sound like an alarmist, if the Court rules in favour of Moore, you can kiss democracy goodbye. Excellent post and excellent explainer, my friend!

    Liked by 2 people

    1. Thanks, Jill. I think distrust of the radical majority is fully warranted, but based on Marc Elias’s reactions to various cases to date, I’ve found he has a good sense of where courts are going. Since SCOTUS probably won’t render a decision til end of June at the earliest, I’m just gonna stick with my sense that we’ve “dodged a bullet” in this case. That doesn’t mean the far right will let the ISL go, of course. We’ll have to keep battening down democracy’s hatches all the time.

      Liked by 1 person

      1. I fully agree, and like you, I have found Elias to be a thoughtful, intelligent and knowledgeable person who has a very good grasp of what goes on. I just don’t trust the current SCOTUS majority, but my fingers are crossed. Funny, isn’t it, how hard this nation fought for democracy some 250 years ago, yet today too many people are willing to sell it cheaply.

        Liked by 1 person

      2. Right, Jill. The SCOTUS majority—the radical majority—has made 74 percent of Americans mistrust them. And we keep having to refight the same battles, it seems. But in one sense, I think we’re in a better place now than we were a few decades ago. There was too much sleepwalking; we now have a better picture of the forces against democracy, and we know holding on to what we have and moving it closer to our ideals is a constant battle.

        Liked by 1 person

  6. The collapse of the “Red Wave” an the D’s retaining the senate has (in my opinion)has tempered the partisan hacks who dominiate the dishonorable SCOTUS.
    They realize they may have destroyed their political master’s in overturning Roe and now may be a bit more cautious.
    Couple that with increasingly louder and louder voices for an “ethical” audit as a result of Alito’s leaks to political allies and Ginnie Thomas’s assimlimation into the nutcase right with her husband sitting in judgement as a “unbaised” judge.
    Fear of oversight may have tempered their radical partisanship.

    Liked by 2 people

    1. These are people who have dodged consequences their entire lives and now call themselves Supreme. I don’t think they have enough experience with fear for it to work, It is time for real repercussions. I think one Justice should be targeted and brought down for a trophy. Thomas would look good on a wall but the antler-less Barrett would thin the herd more rapidly.

      Like

  7. Arizona State Legislature v. Arizona Independent Redistricting Commission is relevant. In 2015 the Court upheld the right of Arizona voters to remove the authority to draw election districts from the Arizona State Legislature and vest it in an independent redistricting commission. The decision was five to four. Only two of the five in the majority remain on the court (Sotomayor and Kagan) and three of the four opposed (Roberts, Thomas, Alito). Chief Justice Roberts, joined by Thomas and Alito, mocked the majority opinion written by Justice Ginsburg on originalist and textualist grounds. Thus for a majority against Moore, three of the four new justices would need to join Justices Sotomayor and Kagan–unfavorable odds.
    https://www.oyez.org/cases/2014/13-1314

    Liked by 1 person

    1. This may be a bad portent, William, but I’m not sufficiently knowledgeable about the legal intricacies to form an opinion about its relevance to the current situation. However, the brilliant newest justice, Jackson, will definitely side with Kagan and Sotomayor. That means two are needed. I think Roberts is more concerned about the court’s reputation than anyone else, and despite his dissent in 2015, he’s always looking for a middle ground. I expect he won’t sign on to a full embrace of the ISL. I’m betting on Coney Barrett to assert her independence in this crucial case.

      Like

  8. Annie I’m wondering if the new justice on the court has been a counterbalance to some of their more radical ideas. She has a fine legal mind, and there may be something intimidating about that, that makes them think twice, especially if she was to publish a dissenting view. It would make their arguments look foolish, something they might wish to avoid at point in time when they are already so unpopular.

    Liked by 1 person

    1. I’d love to think that’s true, Joni. But in the case the court heard before this one, 303 Creative (see my response to Keith), Justice Jackson posed hypotheticals raising questions of race that Alito essentially turned into crude jokes. He’s the one who’s been looking most foolish, but he’s so arrogant that he can’t see it. Thanks for your comment. I always value your thoughtful perspectives, which are both caring and benefit us by being slightly removed from the US morass!

      Liked by 1 person

      1. Thanks Annie. Well that just goes to show how unsuitable he is for being on the Supreme Court. They all seem arrogant to me, esp. Kavanagh and Thomas, Talk about big egos. I watch Fareed Zakara on GPS on Sundays, and he said the US is the only country that has a life time appointment to the Supreme Court – all the others have mandatory retirements or shorter terms – it’s too bad the government couldn’t change/reform that somehow.

        Liked by 2 people

  9. Thanks again, Annie! I hope your good hopes are justified—from what I’ve read, a majority of the Court doesn’t support this Independent State Legislature theory, at least in its “strongest form”, whatever that means. I guess we really won’t know until the decision comes out.
    All my best this Holiday Season!

    Liked by 1 person

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