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Dissent Episode Two: Judicial Adventurism

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The North Carolina Supreme Court rejected a partisan gerrymandered congressional map drawn to heavily favor Republicans last year. The map violated the state’s constitution. The North Carolina legislature is now arguing before the U.S. Supreme Court whether the state legislature has the authority to override the court and ignore its own constitution. The case, Moore v. Harper, raises the prospect of the independent state legislature theory — a fringe theory that, if the Supreme Court rules in favor of, would give state legislatures unfettered authority, remove checks and balances, and undermine future elections. In the second episode of Dissent, host Jordan Smith and Elizabeth Wydra of the Constitutional Accountability Center closely examine oral arguments and unpack how a favorable or even a middle-ground ruling would radically change elections.

[Remixed Intercepted theme music.]

JS: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Neal Kumar Katyal: There are three Federalist Papers on the Elections Clause. Not a word, anything like this. What he would do is gut the ordinary —

Ketanji Brown Jackson: So -—

NKK: — checks and balances.

KBJ: And so, to me, it’s not so much the sort of troubling worry of we have the state legislature violating federal constitutional law because we as the Supreme Court and other courts in the federal system can look at that because it’s a question of did they violate the federal Constitution. Here, he’s saying — no, we do have to comply with the federal Constitution; what we can violate is the state constitution. And what I don’t — I can’t wrap my mind around that argument.

NKK: I can’t either, Your Honor. In — [fades out].

JS: Listening to the Moore v. Harper oral arguments about this notion of an independent state legislature, I — like Justice Ketanji Brown Jackson and former acting U.S. solicitor general Neal Katyal — could not wrap my mind around the logic of the case. 

As U.S. Solicitor General Elizabeth Prelogar also argued, the theory before the Supreme Court would “sow chaos” in state and federal elections.  

Elizabeth B. Prelogar: Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state law-making.

Petitioners’ contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation.

Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding.

JS: The basic idea behind this so-called theory is that the Constitution’s Election Clause gives to state legislatures — and only state legislatures — the power to set conditions for holding elections for federal office — like the House of Representatives. And that, essentially, no one — and definitely not a state supreme court — can really stop them from doing whatever they want, like restricting voting by mail or decreasing the number of polling places, or by shamelessly gerrymandering an election map.

To break down this case and its far-reaching implications, I’m joined by Elizabeth Wydra. She’s the president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. 

Throughout her tenure, she has filed more than 200 briefs on behalf of the center and so many others – including preeminent constitutional scholars and historians; state and local government organizations; and other groups, like AARP and the League of Women Voters.

Elizabeth, welcome to Dissent.  

Elizabeth Wydra: Thank you so much for having me. I’m thrilled to be with you.

JS: OK — to start, can you give us a little background on the case, tell us who the parties are, how it landed at the court? And what is the theory that the North Carolina legislators are presenting?  

EW: Yes. Absolutely. 

So there is a very important case at the Supreme Court this term called Moore v. Harper, and it comes from an extreme partisan gerrymander in North Carolina for the North Carolina state elections. A lot of people, I’m sure, are familiar with the idea of a gerrymander, but the way it worked out, in this case, was: Let’s say there was pretty much an evenly split popular vote in the state of North Carolina, under this extreme, partisan, gerrymandered map it would have resulted in like 10 Republican seats and four Democratic seats, even if it was an evenly split popular vote. 

So because the North Carolina State Constitution guarantees free elections, and here, it certainly did not seem as if it was a free election, because even if more people voted for Democrats, [laughs] they’d somehow end up with Republicans through the map, the North Carolina Supreme Court struck down the extreme partisan gerrymandered map and they went through a couple of iterations of this, and then a group of North Carolina Republican state legislators pushed the argument that because the Constitution gives to the state legislatures — the Constitution uses the term legislatures — the power to regulate the time, place, and manner of decisions, that this state Supreme Court of North Carolina couldn’t enforce North Carolina state constitutional guarantees, and basically that the North Carolina State Legislature had unfettered authority to draw the map however they want, even if it violated the North Carolina State Constitution. 

So we get up to the Supreme Court. And there, we see really a clash of the conservative majority against itself. [Laughs.] We see really spectacular legal advocacy from the side of the folks who are pushing back against this idea. And the backdrop for all of this is what’s known as the independent state legislature theory, which is what the North Carolina Republican legislators are pushing, this idea that state legislatures can do whatever they want with respect to elections without checks or balances, it would have an important impact not just on the drawing of congressional maps, or partisan gerrymanders, but it could have a huge impact on democracy itself. 

And so the independent state legislature theory is really, incredibly important. And that’s what’s at the heart of the Moore v. Harper case.

JS: We should be clear on the constitutional clause we’re talking about, and it seems like in the whole framework of the thing, it’s kind of unremarkable, and it’s just sitting there. 

But this is what it is. I was going to read it so everybody knows exactly what we’re talking about. 

Here’s the clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

So if you could break down what’s happening here with this clause, and how the role of “the Legislature” is being used to further the objectives of the North Carolina legislators? 

EW: Yeah, so I guess as a backdrop: The Constitution, in many places, has layered authority for things. So sometimes state and local governments have certain authority; sometimes the federal government has the authority. Sometimes, like in this instance, the state has some authority subject to checks by the federal political branches, or the federal courts. And so what I want to acknowledge is that if you are a layperson and you’re reading this, it does say the word legislatures of the state — so you might be: Oh, OK, well, the North Carolina Republican state legislators have a good argument! 

No, they don’t! [Laughs.] And that’s because certainly when the Elections Clause was drafted by the framers of the Constitution in the 18th century, the idea that state legislative activity included other aspects of state lawmaking. So that would include a governor’s veto of state legislative action; it would include state court checks on state legislative activity. That was understood to be part of the legislative action of a state. 

In addition to that kind of mechanical understanding from the founding — not to be too shady about it, but the drafters of the Constitution, like James Madison, were extremely suspicious of, let’s say, the quality of state legislatures. So the idea that they would have given them in the Elections Clause, this unfettered power without any checks or balances, just doesn’t really match up to the feelings that the drafters of the Constitution had about state legislatures. 

But I think even more important, we don’t want to go on just vibes when it comes to interpreting the Constitution, as Justice Ketanji Brown Jackson noted in the oral argument that was held at the Supreme Court in Moore v. Harper, state constitutions create state legislatures. It’s all sort of the same organism. And so if you have the state constitution setting out certain guardrails for election processes, whether it’s with respect to voting rights, whether it’s with respect to the drawing of maps, or, as I’m sure we’ll talk about in more detail, the choosing of electors when it comes to presidential elections, which comes in Article Two of the Constitution, the idea that this those state constitutional restrictions apply to state legislative activity is just an organic part of how this stuff works. So what might seem like a reasonable argument at first blush really isn’t.

JS: Exactly. And we’ll get into some detail about all of these things for sure. But just first, for listeners, there were a lot of lawyers arguing this case – including current U.S. Solicitor General Elizabeth Prelogar and two former solicitors general, Neal Katyal and Donald Verrilli – each of whom argued against this independent state legislature thing — or, ISL thing, for short – on behalf of the various parties. And then there was lawyer David Thompson, representing the North Carolina state legislators who are hoping the Supreme Court will essentially bless this wholesale reimagination of the Elections Clause.

Here’s Thompson with his opening pitch to the justices:

David H. Thompson: Mr. Chief Justice, and may it please the Court: The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function. 

As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised.

JS: And here’s Katyal, essentially calling this whole idea utter madness: 

NKK: To accept Petitioners’ claim, you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries nearly everyone has been reading the clause wrong.

That’s a lot of wrong — and a lot of wrong past elections. Frankly, I’m not sure I’ve ever come across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today.

It’s worth taking a pause to think about what petitioners are saying. They claim the word “legislature” means a species of state law that has literally never existed.

JS: And here’s Prelogar, arguing as friend-of-the-court in support of the various respondents:

EBP: There is no category of state law that has previously existed that detaches the state legislature from the state constitution and allows it free rein to have whatever laws it wants without that state constitutional check. And we think that the text and the history and precedent forcefully reinforce this idea that the framers would have understood that when they were giving this law-making power, it carried with it those ordinary checks and balances.

JS: And Verrilli – basically, same vibe:  

Donald B. Verrilli, Jr.: I do want to just interject [laughs] one more time that they have said that this decision is a fair representation of North Carolina law. They are not challenging it under the standard I articulated or any other standard. They have made a different argument, which is that this is categorically a violation of the Elections Clause for state supreme courts to invoke — to apply — vague and general provisions. And so I’m happy to keep answering Your Honor’s questions, I am. But I just want to reinforce that they have conceded that this is a fair interpretation of North Carolina law.

JS: So, going back to the point that Verrilli was making, one of the many things, to me that’s really interesting – [laughs] or maybe baffling might be a better word – is that Thompson, arguing in favor of the ISL, on behalf of the legislators, made it clear that they agreed that the North Carolina Supreme Court had actually gotten the law right — that, in other words, they’d properly interpreted the state law and the state constitution, including its free elections clause, to determine that the map the Republican lawmakers had drawn was, essentially, an illegal gerrymander under state law. But I guess they’re arguing that it doesn’t matter that the [state] supreme court didn’t have the authority to go there.

You’ve got to go there. And also, I’m curious what you make of that concession – that they are about what the Supreme Court here did, that they actually got it right.

EW: That’s a really great question. And what Don Verrilli, who is a fantastic lawyer, is doing here is making clear to the Supreme Court that the proponents of independent state legislature theory in the Moore v. Harper case are swinging for the fences. They are asking for an extreme — extreme — understanding of what independent state legislature theory would mean, which is that even where the North Carolina State Supreme Court is getting the North Carolina constitution correct, and the state legislature engaged in unconstitutional under that state constitution partisan gerrymander, they cannot be — they cannot be — thwarted in their efforts to put this partisan gerrymander into place because, under their theory, state legislatures have unfettered authority. And what Don Verrilli is doing in that clip is trying to convince some of the perhaps more moderate, although it’s difficult to use that label with respect to the Supreme Court, but some of the more moderate conservative members of the court from adopting a middle ground. 

Because one thing that did seem fairly clear from the argument was that it would be tough for the Republican state legislators to get a five-justice majority for that extreme view that state legislatures can do whatever they want; they can unquestionably violate the state constitutional provisions and no one can do anything about it if you’re a member of the State Supreme Court. They did have a weird concession at one point that maybe a governor could veto it. But what Don is doing in that clip is trying to say: If you want to adopt ISL-lite, the idea that if a state Supreme Court has gotten its own standards wrong, then you could step in and say it improperly asserted authority over the state legislature. But that’s not even what they’re asking for. They are swinging for the fences with the broadest possible theory that they can.

JS: Yeah. At one point, earlier in the oral argument, Justice Sonia Sotomayor says the proponents of the ISL are trying to rewrite history. 

Sonia Sotomayor: Yeah, if you rewrite history, it’s very easy to do.

DHT: I’m not rewriting history, Your Honor.

What we’re saying is that when it says all elections, it’s referring to the offices that were created by that constitution. You can see that in Vermont. It says all freeholders shall be eligible for office. It’s not talking about the presidency of the United States, because there’s an age qualification. It’s talking about the —

SS: So why is it that in all of those states [sound of page turning] the legislatures understood that all elections meant that you were going to have paper elections, ballots, in both federal and congressional?

JS: This is a Supreme Court that professes this deep fidelity to original meaning, to this text, to this history. And yet here, Thompson had very few actual historical sites for this proposition that the state legislature is this free-wheeling, hands-off entity when it comes to federal elections. And this stands in stark contrast to the history y’all cite in your amicus brief. Could you tell us about the history, where the legislature comes from – and importantly, how this entity was viewed back at the founding?

EW: So I think this case is really remarkable, in that it puts the conservative supermajority on the Supreme Court’s fidelity to originalism to the test. Because here it’s unquestionably clear that the extreme proponents of the independent state legislature theory are arguing without any basis in constitutional text or history. 

At the time that the Elections Clause was written, the idea of legislatures of the states included checks and balances, like the state courts, like the governor, the idea that limits in state constitutions constrained state legislatures, and that was part and parcel of the idea of a legislature, were just commonly known and accepted by the drafters of the Constitution. 

And they had skepticism about state legislatures and the quality, perhaps, of their decision-making. And so they would never have given unfettered authority in the Elections Clause to state legislatures without those kinds of traditional checks from state courts and state constitutions. 

And I think what’s really interesting is, of course, we at the Constitutional Accountability Center make these originalist arguments against independent state legislature theory in our brief, but we have a lot of company in this case, from conservative originalists. Some of the leading lights of the conservative legal movement, like one of the co-founders of the Federalist Society, and several deeply conservative and well-respected, in conservative circles, judges, appointed by Presidents Bush, came out and said these arguments in support of ISL are complete bunk.

And so you have a cross-ideological, really just tsunami of argument against independent state legislature theory. And if you have these justices on the court who profess to be originalists ignoring all of that, it’s really going to say that this might not be so much about originalism and it might be more about pursuing a political partisan agenda.

JS: Yeah. And just sort of [laughs] naked power, it seems like. 

EW: Yeah. 

JS: Yeah. [Laughs.] There’s an interesting point — or I thought it was interesting, let me see what you think — where Justice Amy Coney Barrett is trying to get at history and saying: OK, well, at the time of the founding, would it be understood that the legislature had the power to set elections? And if that was a baseline understanding, then the second part of the clause, which allows for Congress to overrule them, would’ve been seen as a check on their power that already existed and not that this was some clause that was setting up some new power for the state legislature as Thompson seemed to be arguing. 

I think I read that right, but I was curious if you had any thoughts about that piece of that argument.

EW: Justice Coney Barrett, it was interesting to try to figure out where she was coming from. She definitely seemed skeptical of the North Carolina Republican lawyers’ presentation of history and also the conclusions that he was drawing about that, the concession that I think Chief Justice Roberts brought out of him that a governor could veto state legislative actions with respect to the elections clause — it didn’t seem to be consistent at all with his textual argument that legislatures get to do whatever they want. 

And so, Justice Coney Barrett did seem to pick up on that. And I think that’s why a lot of us, after listening to the argument, counted perhaps her and Chief Justice Roberts in the camp of people who weren’t going to maybe jump in with both feet on the independent state legislature theory. But I think there is definitely a possibility that there’s a majority on the court that could leave the door open for some variation of this. And that could do a lot of damage, even if the court doesn’t take the most extreme view of independent state legislature theory, which I certainly hope they will not.

JS: Another thing that struck me was that Justice Jackson kept coming back over and over again to a very basic question, which was: If the state legislature is a creation of the state constitution — and that’s where it derives its power — then how can it act outside the scope of power granted to it by the state constitution.

So, here’s a clip of one of those moments: 

KBJ: If the state constitution tells us what the state legislature is, and what it can do, and who gets on it, and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it

DHT: No, Your Honor, it’s a federal function, and we know that from Leser. So this Court, in Leser, held it’s a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal —

KBJ: Yes, it’s a duty. The duty is to make this legislative determination — that is, the determination about elections. 

My question is: Where does the entity’s power come from to make any determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination, but they’re not giving just anybody in the state that right. They’re giving somebody called the legislature. And, in order for us to have a thing called the legislature, we have to look at the state constitution to determine what that entity’s powers are, how they can be exercised; other than that, I don’t really understand how the legislature is authorized to act at all.

JS: Throughout the argument, she kept saying, basically: Yeah, yeah, yeah, yeah — but this! 

Right? So I’m curious what you make of this. Explain what she’s trying to get at over and over again here, that Thompson regularly seems to be sidestepping or just flat-out avoiding answering. 

EW: Yeah, I mean, it is a fundamental flaw in the logic. The proponents of independent state legislature theory are saying that they can act contrary to the very charter that creates them. Justice Jackson, one of the things that I really enjoyed seeing from her after she joined the bench, is the way that she just zeroes in on these fatal flaws in the logic of advocates’ cases. It’s probably terrifying if you’re arguing before the court [laughs] — but this was where she just really, I think, got them. 

And Thompson never came up with a good response to Justice Jackson, because there isn’t a good response. The idea that the state legislatures can ignore the state constitution, when the state constitution creates them, just doesn’t make any sense. And the state courts, applying the state constitution, that’s how those guardrails are applied. And she just really got to the point, and he never really was able to get around that.

JS: No. If not the state constitution, where would the legislature come from? [Laughs.] 

EW: Yeah. 

JS: And if it doesn’t come from anywhere else, then how can it not be bound by the thing that created it and, as you said, gives it the guardrails that it operates under in every other way?

EW: Exactly.

JS: I guess, except for: Asterisk! This one. [Laughs.]

EW: Yes. Right. 

It doesn’t make any sense. Thompson, the lawyer for the Republican legislators, never really came up with an answer. But some of the conservative allies of this argument on the court did try to suggest a way around that by saying, perhaps state courts, when it comes to the Elections Clause, have to be enforcing identifiable standards. And so they couldn’t be these vague, broad terms; they had to be identifiable standards. And so that was kind of the way that other conservatives tried to get around Justice Jackson’s trenchant point, but there’s no way under the most extreme theory that you can get around that.

JS: No. And also to that point, they’re like: Well, there’s these squishy things, like fair elections, what could that possibly mean? How could we possibly know? 

And I think there’s, at one point, where Sotomayor is like: What do we mean when we say it’s free speech? What do we mean, when we say due process?

I guess, in whatever the theory is about these mushy things, that somehow the federal court would be able to come in to decide, I guess, when it’s too mushy. 

EW: Yes. 

JS: But I mean, that makes no sense to me, either, because first of all, we have the same sort of mushy — that’s not the right word — we have the same sort of free-flowing kind of ideas that are embodied in our constitution that they still can’t agree on lots of times what they mean, let alone what they know what North Carolina meant by it, or Wisconsin or whoever else. I just thought this is a dangerous theoretical middle ground — 

EW: Yes. 

JS: — or we’re gonna give you some out here, and I find that — it scares me a little bit, because I don’t think that they’re better positioned to decide what that meant for the history of North Carolina or any other state than those Supreme Court justices in those states would be.

EW: Yeah, you’re exactly right. And this is where we get to some of the hypocrisy of some of the conservative justices and advocates, I think. We’re used to hearing from conservatives about federalism and states’ rights. And here, instead of broad deference to state courts, they floated this idea that unless state courts were doing something that was really along the lines of an identifiable and specific standard, the federal courts would come in and say, no, no, no — and that was a little unclear exactly what they were talking about there. 

But you’re exactly right: Our Constitution, and many state constitutions, have broad guarantees. And for a lot of us, that’s a good thing. We should have broad guarantees in the Constitution that then are translated into more specifics by legislation, by policymaking, by the political branches. But, often conservatives we’ve seen in this court, whether it’s with respect to reproductive rights, or other areas of equality and equal citizenship, [have] very limited vision of what those broad terms mean in the Constitution. And so there does seem to be a little bit of a freakout by some of these conservative justices about what are intentionally broad and sweeping guarantees. 

The idea of free elections, which is what we’re talking about under the North Carolina State Constitution, is a big term. It’s a big guarantee. It’s a broad guarantee. And it should be! [Laughs.] And so if we have a ruling from the court that cuts back on state courts’ ability to protect voter rights; to protect against suppression and obstacles being placed on the right to vote, in addition to partisan gerrymandering — not even getting to the fake elector scheme that former President Trump and his allies were trying to push using this same independent state legislature theory, there could be a lot of mischief made that that would be to the detriment of our democracy.

JS: Yeah. 

So we played that clip of Justice Jackson talking to Thompson, and Thompson tried to respond, and then Justice Sotomayor jumped in. 

DHT: Well, Your Honor, we know that’s not right because, in Leser, the people of Maryland tried to prevent women from voting, and the way they did that is they put in their state constitution a prohibition on adopting the Nineteenth Amendment, and then it came to this Court and this Court said that this is a federal function and that substantive limit of the state constitution was inapplicable. So that’s what we’re dealing with here, is a federal function.

SS: But that was because it violated the federal Constitution, not because it violated the state constitution. But let me go back to what I don’t fundamentally understand about this case …

JS: And a bit later Thompson and Sotomayor have a back-and-forth on the difference between substance and procedure. 

SS: Well, it seems that every answer you give is to get you what you want, but it makes little sense. We have more than one occasion that we describe the task in Mistretta of distinguishing between substantive and procedural rules as a logical morass that the Court is loath to enter.

DHT: And one —

SS: And I simply — what I don’t understand is the question that Justice Jackson asked you, which is: If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the states.

JS: And this kind of gets to, what you were talking about, the veto thing, I think.  So I’m hoping you can try to kind of explain the significance of this idea; this procedure versus substance thing hurt my brain a little bit.

EW: [Laughs.]

JS: Because, it seems like Thompson is saying: Cool, right, so the legislature passes something and if it has this rote hurdle to cross — say, it has to be presented to the governor, and she has the power to veto it under state law — well, that’s just “procedure.” But anything “substantial,” that I guess would give anyone else — especially the courts — the opportunity to change what the legislature has done, then that’s out.

But what I don’t actually get is: Don’t they both get to the same place? Like if there’s an election map and the governor is like: Nope! Veto! 

Isn’t that basically a substantial change? So, is this just weird parsing without actual difference? Can you just help my brain wrap itself around this [laughs]? Because I found it all, whew, a little hot.

EW: Yeah. No one was really buying this distinction. 

JS: [Laughs.]

EW: Well, I shouldn’t say that. I don’t think there was a majority of justices on the Supreme Court who were buying that distinction.

It seemed to be an attempt to say something like the procedures by which a decision is adopted or made can be enforceable by the state courts or by a governor. But the actual substantive guardrails can’t be enforced by state courts.

And that just doesn’t really make any sense, other than through kind of a results-oriented, backward, [laughs] reverse-engineered logic. And I think that part of this when it was argued a little more coherently by some of the friendlier justices on the court in their questioning of the lawyers who were pushing back on independent state legislature theory, was this idea of trying to limit some of the interference on state legislatures when it comes to election procedures. And that’s where we get to the ghost of Bush v. Gore, where all bad things come from. [Laughs.]

JS: I was just going to bring this up. So why don’t we just go to that. Because the thing that keeps coming up over and over is Bush v Gore. So just a reminder that it is the court case that essentially ended the recount in Florida back in 2000, and landed George W. Bush in the White House. 

So why, why, why Bush v. Gore? 

EW: I know, right? 

JS: And what’s the significance and how terrified should I be? [Laughs.]

EW: Yes. 

JS: That this has somehow raised its head from the — ugh.

EW: It was supposed to be fact-bound, but somehow it still sticks around. 

JS: It’s escaped its cage! [Laughs.]

EW: Yes. Exactly!

And it’s interesting because many of the now-justices when they were lawyers, the conservative justices, worked on the Bush v. Gore case, on behalf of President Bush. 

So, in Bush v. Gore, there was a side argument from the late Chief Justice Rehnquist, a very conservative jurist, who argued that Florida didn’t follow its own procedures. And so the Florida State Supreme Court just kind of got the procedures wrong. And so that was an acceptable reason for interfering with the Florida State Supreme Court’s adjudication and decisions in the recount. 

Because again, normally, there is this deference that we provide to state courts when it comes to their interpretation of state law. Because they presumably are the experts and not the federal courts, who are experts in federal law. And so this kind of side argument from Chief Justice Rehnquist focused on the state court, presumably getting it wrong. And this was different from the majority’s basis for their ruling, which was obnoxiously on the equal protection clause of the federal Constitution. 

All of that is a long way of saying that there was sort of this attempt by some of the conservative justices in Moore v. Harper, who might not be willing to take the train all the way to crazy town when it comes to independent state legislature theory, but might be willing to sort of get on for half of the ride to say that if it seemed like state courts were not properly enforcing the state constitution, that there could be limits on the way that they check state legislative activity when it comes to federal elections. 

But that is very unclear, really, what that means. And it really would open the door, I think, to all sorts of shenanigans, and litigation, and major questions about something as sacred and fundamental to democracy as the vote of the people being understood to be reliable and predictable in the sense of: you cast your vote; your vote gets counted; your vote has meaning. That is concerning.

JS: Yeah, actually, there’s a great — I’m sure you remember — there’s a great part where Justice Elena Kagan really hit home, the ramifications, the fallout, I guess, essentially, that would come from an embracing of the ISL. Let’s play that clip:

Elena Kagan: [T]his is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the Constitution.

It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated. 

So — and, in all these ways, I think what might strike a person, is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self-interest. They want to get re-elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.

JS: Following on that, it’s sort of: If the Supreme Court rules in favor of North Carolina, and we could go full train to crazy town or even just make a stop at the depot, however you want to take that, how would that affect the way elections are run? And what could be the ramifications, even, maybe, beyond what Justice Kagan has outlined during argument?

EW: If you start from the facts of the Moore v. Harper case, and then work your way out from that, obviously it would allow extreme partisan gerrymanders to go forward without meaningful checks. This is a real problem. You have states where, again, the popular vote, if you look at what the votes said in terms of who people voted for, and then look at the way that they’re translated into representatives, it bears very little relation. In this case, it would have been if there was about an evenly split popular vote, it would have gone to about 10 Republicans and four Democrats. 

And so you know that the extreme partisan gerrymandering maps — just the facts of this case are very concerning. And because the U.S. Supreme Court has said recently that they do not think that the federal courts have a role to play in striking down extreme partisan gerrymanders, that really would allow them to continue without any recourse for voters. So if you then expand from that, worth looking at state limits on the right to vote, voter suppression, making it harder for people to cast their votes, whether that’s changing voting procedures or the way that you register to vote, those could go forward without any sort of state court checks and balances.

And then jumping from Article One of the Constitution to Article Two, which deals with the way in which the President of the United States is elected.

JS: Actually, let me stop you, because we might as well just put that in the mix now because I was going to ask you about that. Because there’s this other piece, right, which is this Article Two piece. Maybe you can say what that is, because I think the fear I hear, in part, from what I’ve heard and read, is sort of like that this is like one step. This form of independent state legislature is one step, and there could be something far worse. And that is based on this ISL buried in Article Two. 

So maybe you could just unpack that a little bit, because I’m not sure that everybody knows exactly what that is. Although [laughs] we’ve heard fake-electors-this, fake-electors-that, but how does this all kind of tie together, I guess?

EW: Right. So the section that we’re talking about from Article One of the Constitution in Moore v. Harper deals with the time, place, and manner of congressional elections of representatives, and the ability of the legislatures of the states to prescribe the manner of elections. 

And then when you get to Article Two, and the clause that deals with the election of the President, it talks about the legislatures of the state. So again, the same wording, being in control of setting the manner of choosing electors to the electoral college. 

So generally, when we’re talking about how to interpret legal phrases and words in the laws, if it’s interpreted one way, in a related context, you interpret it similarly in the other context. And so the concern is that if there is this unfettered authority given to state legislatures with respect to the time, place, and manner of congressional elections, in that part of the Constitution, when it comes to the manner in which electors are chosen for the president in Article Two of the Constitution, then that same extreme independent state legislature theory would apply — and then you would get yourself into situations like we saw being pushed by team Trump, where they were urging state legislators to put up a whole new slate of electors that went against the will of the people in that particular state, and that would have kept President Trump in power, despite the vote of the people to the contrary.

JS: So nothing that much to worry about. [Laughs.]

EW: No, it’s definitely something to worry about!

JS: Ugh.

EW: And I think sometimes I understand that for folks who are not deeply entrenched in this, your eyes start to glaze over when it’s gerrymandering, and independent state legislature theory, and all of this. And in some ways, I think that was very savvy for proponents of the independent state legislature theory to bring it to the court in this particular context, and not in perhaps the most dangerous context of trying to keep a president in power, despite the vote of the people electing a different president, you know? And so I think there should be no mistaking that that is what we would be headed toward if independent state legislature theory is accepted in this particular case.

JS: Neal Katyal’s opening was sort of lasered in.

NKK: Thank you, Mr. Chief Justice, and may it please the Court: For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm: One is that when enacting legislation, there’s no such thing as an independent state legislature. The other is that North Carolina statutes authorized what the North Carolina court did.

JS: So, on our first episode of Dissent I spoke to legal analyst Jordan Rubin about why the court would even take up this case, right? The point that Katyal is making here underscores that question. What do you make of the court taking the case in the first place?

EW: Yeah. I think it’s important to remember that to take a case you need four justices. And to win a case you need five. So we already know that there are a number of justices on the court who either are embracing the theory, I’d put under that category probably Justices Alito, Gorsuch, and Thomas. And then at least, Justice Kavanaugh, who, during his time as an advocate, argued, in a certain sense, for the independent state legislature theory. So I’m not surprised necessarily that there are four justices who wanted to hear it. 

Again, it’s tough using this label for this court, but it’s all in context, the more quote-unquote moderate conservative members of that conservative supermajority, like perhaps Chief Justice Roberts, might have wanted to tweak the theory to make it a little more palatable and not quite the extreme version that is being put forth by some conservatives. We don’t know because of the lack of transparency around the certiorari process which four justices — or maybe more — voted to hear the case. But I can see some reasons why they might want to. 

And again, if you’re someone who wants the independent state legislature theory to move forward, it’s probably better to have it in the North Carolina redistricting case, rather than a Trump v. Democracy case. And I will say, fortunately, we saw in most of those efforts from team Trump, when they tried to push this, they were roundly rejected by pretty much every court that John Eastman and company tried to push this theory in.

So yeah, they didn’t need to take the case, because, as Neil Katyal said in his opening, there’s been pretty much unanimous, historical understanding that the legislative process includes state constitutional restrictions as interpreted and applied by state courts. And also Supreme Court precedent itself suggests that that’s not the way that state legislatures operate when it comes to the Elections Clause. And the response from the proponents of ISL was just like: Yeah, overturn all of that. [Laughs.]

JS: [Laughs.] Another thing that Jordan Rubin and I talked a lot about [is] how the court essentially sets its own agenda; it can take these cases; and so that when you come out with an opinion that’s maybe not this full embracing of this thing, and you get trapped in this thing where you’re saying: Oh, well, we have a compromise. And I think that again, it’s dangerous, right? Because they reach out and take this — there was no reason for them to do it. And, I don’t know, I just really didn’t have a sense — we talked about this a little bit — it was very hard for me to tell where people stood at the end of this. And I don’t know even if there’s a compromise opinion that goes halfway to crazy town, like, should we accept that?

EW: No! [Laughs.] 

JS: Do you know what I’m saying? Is that still a problem? Yeah, maybe just go for it.

EW: Yeah I think one of the hallmarks of the current Supreme Court is that because it is so, so conservative really the window has shifted for the types of arguments that are being presented to the court. And those of us who are court watchers, and just all of us in this country, should really resist that shift. Again, so just because you don’t do the absolute craziest thing if you still do something crazy and dangerous, that is still bad. You know?

And so, I think really what we’re seeing — and it’s not just in this case, we’ve seen it, across the spectrum of issues — is that these really extreme arguments are being presented to the court. And in some cases, this court is embracing those theories, with the complete overturning of Roe v. Wade, [which] was the most extreme version of that. 

And just as we’ve seen in some other cases, we’re prepared for the absolute worst, and then when it doesn’t happen, I think there is sometimes this tendency to be like: Oh, OK!

No — do not give in to that tendency here. I mean, look, it could be really bad if they fully embraced the extreme, really unhinged theory of the Republican North Carolina State legislatures. But even opening the door to some version of independent state legislature theory could be extremely dangerous to democracy.

JS: Yeah. And I guess I’ll just wrap up on this, which would be that, obviously, the faith in the Supreme Court has just really dwindled, particularly after Dobbs, which just hit so many people like a bomb. And the cases that they’re taking up now don’t seem to offer much hope for this super-measured court. So I’m curious about your sort of broader thoughts on the direction of the court and about calls for reform. And I’m curious for you, what would reform look like?

EW: When it comes to reforming the Supreme Court, the way that I like to think about it, is to put on the lens of what are the problems of justice that we’re seeking to solve. And those problems are deep. And while I think probably the most obvious, and maybe easy decision of what reform steps to take is adding more justices to the court simply because, we haven’t done it for a long time, the country has grown bigger, our ideas of who is included are broader — thank goodness. And so simply having a few more justices is probably just good government, regardless of what side you’re on. 

But looking deeper at the problems of justice we want to solve, there are real problems of access to justice, of equal justice [and] fairness. And so we at the Constitutional Accountability Center have just done a look at the way in which these questions were looked at during the Reconstruction period after the Civil War. And so many of the same issues were being debated: Should we expand the court? Should we strip jurisdiction? Should we require a supermajority of justices in certain cases?

And one of the things that they did, in addition to expanding the court for a brief period, was they passed legislation that sought to make good on the promises of fair justice and equality in the Constitution. And so I would urge us when we talk about court reform, to think more broadly than just adding justices on the court, although that’s probably step number one, and think more about what can we do to actually create the system of justice that is truly just and is the one that we want, and deserve. 

And for this court, I think that this case, the Moore v. Harper case, is a real test for them, because there is this overwhelming consensus amongst conservative and more liberal scholars that the independent state legislature theory is absolute bunk, even according to the conservative originalist arguments that a majority of these justices profess to follow. And so if they don’t follow that constitutional text in history, where it leads, which in this case would be to slam the door on independent state legislature theory, then it is just going to make absolutely clear that they’re following something other than the law, which many people already suspect is a partisan ideological agenda. And that would just further damage confidence in the court and the public faith that we should and deserve to have in our courts of law.

JS: Elizabeth, thank you so much for joining us. 

EW: Thank you for having me. I really enjoyed the discussion.

JS: That was Elizabeth Wydra, president of the Constitutional Accountability Center. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

 

The post Dissent Episode Two: Judicial Adventurism appeared first on The Intercept.


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