The GOP's Independent Legislature Scheme Has Its Day In Court
The 6-3 Republican supermajority on the Supreme Court means this will likely go badly, one way or another
This morning the Supreme Court heard oral arguments in Moore v Harper, a Republican scheme that would grant state legislatures the ability to unilaterally change the rules for elections. The worst-case scenario for this case is extraordinarily bad: It could give Republican-controlled legislatures in states like Wisconsin and Arizona the ability to steal the 2024 presidential election all by themselves, without need of a governor’s signature and immune from challenges in state courts. (You can see how at-risk your state is, and why, in this new resource from Take Back The Court.)
Simply put, there is no merit to this case. And as Vox’s Ian Millhiser noted in previewing oral arguments, a host of right-wing types have agreed:
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An array of conservative luminaries filed briefs practically begging the Supreme Court not to do any of this. Foremost among them is J. Michael Luttig, a former federal judge who was on the cutting edge of legal conservatism in the Clinton and George W. Bush administrations.
Then there’s an amicus brief signed by Steven Calabresi, a founder of the conservative Federalist Society and the co-chair of its board, warning that the Moore petitioners “flout core tenets of the American Founding.” A brief by Benjamin Ginsberg, for many years the Republican Party’s top election lawyer, warns that the ISLD would “create untenable legal uncertainty around elections” and “increase the odds that state legislatures replace the popular vote with their own political preferences.” A brief on behalf of retired admirals, generals, and service secretaries — some of whom held high-level political appointments in Republican administrations — warns that the ISLD “undermines election integrity and exacerbates both domestic and foreign threats to national security.”
Milhiser concludes: “Let me be explicit about just how weak the arguments are supporting the independent state legislature doctrine: Any judge who, after reading the briefs in this case, concludes that the ISLD has merit is either too incompetent to practice law or too blinded by ideology to sit on any court.”
But the threat the independent legislature scheme poses to democracy is a feature, not a bug. Their hostility to democracy is precisely why Republicans are peddling it, and the Supreme Court’s hostility to democracy is precisely why it agreed to take up the case.
Anyway, oral arguments were this morning, and Justices Amy Coney Barrett and Brett Kavanaugh expressed enough skepticism of maximalist versions of the independent legislature scheme that the commentariat is breathing a sigh of relief, assuming they won’t go along with Justices Thomas, Alito, and Gorsuch in approving the worst-case scenario. And maybe they won’t. But then again, I remember this:
That was just about a year ago.
In any case, it’s important to understand that even if the Court doesn’t go along with the maximalist version of the GOP’s legislature scheme, it may still do grave damage to democracy via Moore v Harper.
Under the headline “Amy Coney Barrett appears likely to block the GOP’s latest attack on democracy,” Vox’s Millhiser writes that after today’s arguments “There are probably at least five votes to reject the most extreme versions” of the scheme. “Amy Coney Barrett: Hero of democracy,” as Millhiser put it in a presumably somewhat tongue-in-cheek tweet. But is she? Even if the Court doesn’t adopt the maximally-ruinous version of the independent legislature scheme, it still seems poised to do significant harm. Indeed, Millhiser writes that Barrett and Kavanaugh “appeared open to joining with the Court’s right flank” in giving the Supreme Court “the power to rewrite at least some state election law.” Millhiser today:
This Court has a history of announcing that it is giving itself a vaguely defined new power to intervene when it doesn’t like something that another arm of government has done, and then using that power in ways that appear partisan or ideological. So it is concerning that the justices appear willing to give themselves a new power to decide at least some disputes over state election law.
But a decision in Moore announcing that the Supreme Court may step in when “egregious” or “outrageous” cases arise is a far cry from the wholesale attack on free and fair elections proposed by Thompson, and embraced by Gorsuch.
And this is where we are, democracy-wise: The right-wing Supreme Court is so hostile to democracy that, when it appears poised to seize new power to re-write state election laws, the Court’s closest and best observers breathe a sigh of relief because they think the outcome appears likely to be less catastrophic than it could be.1 (Though, again, the worst-case scenario remains very much in play.)
Finally, it is important to keep in mind that even in a best-case scenario in which the Supreme Court fully rejects the independent legislature scheme2, simply by agreeing to hear this cockamamie case, the Court will have invited and encouraged additional Republican mischief — and will provide a roadmap to how future efforts might be more successful.
The name of this newsletter — Finding Gravity — was inspired in part by the Drive-by Truckers song Gravity’s Gone, in which Mike Cooley sings “I've been falling so long, it's like gravity's gone / And I'm just floating.” That line pops into my head frequently as I think about how disorienting our current era can be. We’re in such a free-fall (and in so many different ways) that it can be hard to keep track of where we are, which way is up, which way is down — and the difference between falling and floating. It’s a theme to which I expect to return.
This does not strike me as likely, though I tend to avoid specific predictions about the outcome of specific Supreme Court cases. Directionally, we know that this Republican court is hostile to democracy; whether the justices will view any particular case as a satisfying vehicle for its efforts to entrench Republican rule is much more uncertain.