Will John Eastman get the last laugh?
The 2021-2022 Supreme Court term will go down in infamy.
The right-wing majority behaved as if they were kids in a candy store, stuffing their faces with all their favorite goodies knowing there was no one who could stop them and no one who could hold them accountable for having done it. On gun rights, abortion, religion and the environment they took a wrecking ball to the court’s precedents and created bold new tests out of thin air. It was a breath-taking exercise of sheer institutional power — and they’re just getting started.
On the last day of the term, after handing down yet another shocking ruling (hamstringing the government’s ability to deal with climate change), they announced that they plan to take up one of the most hare-brained, right-wing assaults on democracy yet this fall — Moore vs Harper. Surprising even their most cynical critics, the Supreme Court agreed to take up the so-called “Independent State Legislature Doctrine,” a half-baked idea that sprang out of nowhere in the opinion written by Chief Justice William Rehnquist and signed by Justices Antonin Scalia and Clarence Thomas in Bush v. Gore. Rehnquist held that since Article II of the Constitution says that states are to appoint electors “in such Manner as the Legislature thereof may direct” a federal court can reverse a state court’s decision regarding state election law if it finds that that the state court disregarded the intent of the state legislature. Justice John Paul Stevens wrote a scathing dissent in response, accusing the opinion of displaying “an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.” He said it would “only lend credence to the most cynical appraisal of the work of judges throughout the land.”
Rehnquist’s novel idea was pretty much relegated to the ash heap of history except for some far-right judicial gadflies who were apparently chattering about it a Federalist Society cocktail parties for the past couple of decades. Until it reared its ugly head again before the 2020 election when Republicans started litigating their complaints about changes to the voting system due to the pandemic.
In a Wisconsin “shadow docket” case that was vacated by the full court, Justice Brett Kavanaugh weirdly inserted an irrelevant footnote referencing Rehnquist’s idea saying that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” A few days later Justices Samuel Alito, Neil Gorsuch and Clarence Thomas filed a statement in a case in Pennsylvania suggesting that they also believe the Court must reverse a state supreme court that “squarely alters” election law enacted by a state legislature. So that makes four justices who have at least hinted that they are sympathetic to the idea that they are empowered to overrule state courts if they follow their own state constitutions in voting rights and procedures. In fact, it appears that all four are willing to overrule all state actors in favor of the legislature which they deem to be the only authority over election laws. Well, except, of course, for the Supreme Court which reserves for itself the final word.
What this means in practice is that Moore could potentially put an end to state laws designed to end partisan gerrymandering, including in places like California where they use independent commissions. Even more concerning, closely divided states in which the legislatures are dominated by Republicans with Democratic governors and Democratic majorities on the Supreme Court, could end up being totally at the mercy of state legislatures which could act with total impunity. Governors could not even exercise their normal veto power and the courts would be nothing but potted plants when it comes to elections. With partisan gerrymandering untouchable, those Republican majorities would pretty much be permanent.
J. Michael Luttig, an ultra-conservative former jurist, highly respected among Federalist Society types like the Supreme Court majority, sounded the alarm months ago, calling the Republican attempts to overturn the election in 2020 a “dry run for 2024.” He specifically mentions the Supreme Court’s apparent interest in the Independent State Legislature Doctrine and his analysis of the probable outcome in Moore tracks with other court observers: The three liberals will reject it along with Chief Justice John Roberts while Alito, Gorsuch, Thomas and Kavanaugh are all onboard. Only Amy Coney Barrett’s vote is unknown and she’s firmly an “originalist” which this court uses as a catch-all rationale for whatever partisan outcome they desire.
Luttig made plain what needs to be done:
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
It’s possible they’ll be able to do the latter but after what we’ve seen this term it will be a shock if the court does not let loose the hounds of hell on our electoral system by empowering far right, super-gerrymandered legislatures to create election “rules” in federal elections that could conceivably overturn the vote of the majority. That is, after all, what Trump and his legal henchmen were pressuring state officials to do in 2020. Is there any question that they will do it in the future once they have the imprimatur of the Supreme Court?
As a political institution, the Republican Party no longer has any commitment to basic democratic principles. And from what we saw this term, it’s clear that as a legal institution the Supreme Court is no longer committed to them either. This case could literally spell the end of democracy as we’ve known it. ‘