When the current 6-3 Supreme Court agrees to hear a case — no matter how crackpot the legal theory might be — you can be sure we will soon be kissing some important precedent goodbye.
First, they make up their minds, then they hear the arguments. Consequences are for the little people.
With the Dobbs decision, as I’ve written, they’ve upended not just legal precedents, but also the legal institutions that have grown up around those precedents. Generations of case law will now need to be re-litigated, as different states enact different sets of laws based on diametrically opposed worldviews.
State-v.-state lawsuits are already starting to fly, and the legal positions are already being hardened. Interstate cooperation — a crucial component of daily life — is already fraught, and could at any time turn ugly. It’s almost as if chaos were the point.
The six “conservative” justices — they’re conserving very little these days — are pushing everything in the direction of chaos. Whatever the democratic institution they’re invited to tear down, they seem willing to go there. Like they’re remaking the legal system in the image of Ginni Thomas.
With that in mind, let’s turn to Moore v. Harper, possibly the most crackpot case to come before SCOTUS in many decades. Based on the “independent legislature theory” — a tangle of bad-faith legal contortions — it’s a case that couldn’t have been brought before any other SCOTUS in American history, at least not with a straight face. It has, in fact, been laughed out of every courtroom it’s been argued in. Which is no doubt why SCOTUS chose to hear it.
It’s not a mediagenic case, but it is a dangerous one, with fraught implications for the basic machinery of democracy. It comes with a long and convoluted back story that befuddles even those with long attention spans. It might have slipped under the radar, had we not grown so sensitized to the radicalization of SCOTUS.
But the mainstream media, to its credit, has actually stepped up on this one. They saw it coming a few months back, and they’ve kept reporting on it. So while I won’t try to replicate that back story, it’s easy to bring yourself up to speed here, here, here, or you can google it endlessly.
And please do. It’s hard to reduce what the New York Times calls “a political power grab in the guise of a legal theory” down to a few soundbites, but it urgently requires our attention. Because this so-called theory is best characterized as a declaration of the right to gerrymander.
North Carolina Republicans brought the case, having been stopped by their own state courts from drawing electoral maps that were comically gerrymandered. The State Supreme Court ruled, and sharply, that they’d violated all sorts of guarantees enshrined in the North Carolina Constitution — free elections, free speech, free assembly, equal protection — and that the maps had been carefully crafted to favor Republicans, possibly forever. Neither the power grab nor the ruling that smacked it down was subtle.
But who needs subtle when SCOTUS has your back? Those same Republicans, now aided by fringe elements of the legal profession — the likes of John Eastman, Sydney Powell, and, yes, Ginni Thomas — think they have a shot at throwing the entire federal election system into chaos. Even worse, they think it’s a great idea.
If they get their way, SCOTUS could simply nullify the role of state courts in deciding how federal elections are conducted. This would not affect state or local elections — federal only. Go figure.
But under such a ruling, every state legislature would be “independent” of judicial oversight. They would be authorized to draw their federal electoral districts any way they want, with total impunity, and the courts could do nothing about it.
Forget separation of powers. Forget checks and balances. Forget free and fair elections. All power to conduct federal elections would now rest in the hands of state legislatures, most of which are now firmly in the hands of nutjobs. State supreme courts would have no power to overturn even the most extreme gerrymanders.
And once this legal can of worms is pried open, all kinds of slimy things can slither out. Those same nutjob legislatures would theoretically be free, not just to gerrymander, but also to write any sort of law they want, as long as it concerns federal elections: voter ID, voter suppression, even the ability to reject electors in a presidential race. In theory, such an independent legislature could even nullify the veto power of its governor.
There’s more. With a single ruling, SCOTUS will have torn up election laws on the books of every state in the union, and new legal frameworks will need to be rebuilt from scratch, at great taxpayer expense. Much the way they’ve done with Dobbs.
There is some good news, sort of. Reading the tea leaves of the public arguments, John Roberts appears to want no part of this idiocy — it’s a bridge too far, even for him. Amy Coney Barrett, surprisingly, was likewise skeptical in her questioning. If those two vote against it, the whole thing could go away like a bad dream. But I’m not holding my breath.
The other good news, sort of, is that a bad ruling would apparently be more likely to benefit Democrats than Republicans, at least in the short term. I won’t get into the electoral math (see here), but it’s based on the fact that states with Democratic-led legislatures tend to be more populous, with more congressional seats, and hence with more districts to redraw. So the solidly-Democratic California legislature, say, would suddenly be free to shape its 52 congressional districts any way it wants, with no interference from state courts. They would surely draw maps that heavily favor Democrats.
Other blue and purple states would surely do the same. In such a radicalized scenario, Democratic legislatures would have no choice but to gerrymander as ruthlessly as Republicans. And for a while, they’d have the means to do so.
I call this good news, but there’s nothing good about the independent legislature theory.
The mainstream legal community — progressives and conservatives alike — has rightly condemned it with uncharacteristic unanimity, not to mention disgust. Few legal doctrines have ever faced such universal loathing.
Would that matter to a guy married to Ginni Thomas? Probably not. Would that guy be able to convince four more of his fellow vandals? We’ll find out in June, when they hand down the decision.
But having already thrown the legal system into total chaos with the Dobbs decision, SCOTUS seems to be cultivating a real taste for it.