Hardcore consesrvative, former appeals court judge J. Michael Luttig makes an originalist states’ rights appeal for the judiciary against the Independent Legislature Theory that might just peel off two of the wingnuts( if any of them still have any integrity at all.)
The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.
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.
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.
The argument is long and dense but readable. I urge you to read it if you can. Luttig goes through chapter and verse about the state judiciary’s role in the constitution and takes on the very thin arguments that say the state legislatures are given this massive power through this very convenient interpretation of the elections clause that has only recently been discovered. The argument is obviously aimed at the conservatives on the court. I only hope that two of them can read it. It ends like this:
The Supreme Court does not agree on the nature, scope, and standards governing its own review of Congress’s enactments under the U.S. Constitution. Every day the Court sits, its members employ different and shifting outcome-determinative interpretive methodologies and consult different sources when interpreting and applying the U.S. Constitution. There is no reason to believe that there would or should be any agreement among the justices as to how to fashion federal constitutional constraints on the state supreme courts’ review of their legislatures’ laws under their own respective state constitution.
But there is every reason that they should never try.
All of which goes to confirm that the Constitution neither contemplates nor permits federal constitutional commandeering of the states’ constitutions and their judicial processes. Rather, it contemplates and provides only for federal judicial review of the state supreme courts’ state constitutional decisions by the U.S. Supreme Court for consistency with the United States Constitution.
You’d think that judges would be sympathetic to this argument. Basically this theory is saying that state supreme courts are nothing.
I just don’t know if any of this majority is persuadable. From what we’re seeing in the arguments today in the Alabama gerrymandering case, it certainly appears that Barrett is kind of vacant. Her questioning on this is as fatuous it was in the abortion case. But maybe Roberts and Gorsuch? (Kavanaugh maybe, but he’s made it clear that he’s open to the ISL theory.) I just don’t know. Luttig sees this as a major threat to democracy. It is.