A case that even this Supreme Court seems torn over

By | December 8, 2022

Quinta Jurecic writes:

Midway through yesterday’s Supreme Court oral argument in Moore v. Harper, the case concerning the “independent state legislature” theory, Justice Elena Kagan took a moment to consider the stakes. “This is a theory with big consequences,” she noted.

Kagan’s comment was a dry bit of understatement. Ever since the Supreme Court first agreed to hear the case, Moore has drawn alarm from across the political spectrum, with liberal activists and grandees of the conservative legal movement alike condemning the independent state legislature theory as a threat to American democracy.

Making a firm prediction on how the Court might rule in Moore based on oral argument alone would be a mistake: Legal scholars and reporters tend to refer to the practice of guessing how the justices will vote following an argument as “reading the tea leaves,” and as the metaphor suggests, this method of prediction isn’t particularly precise. That said, few justices seemed interested in adopting the more aggressive variations of the independent state legislature theory that could throw American elections into chaos. But the real test will be in just how thinly—to paraphrase another comment of Kagan’s in a recent case—the Court decides to slice the bologna.

The independent state legislature theory is frustratingly difficult to understand—which is one of the reasons Moore has caused such alarm. In essence, proponents of the theory argue that the Constitution grants state legislatures an unusual degree of nearly unchecked power to control how states administer federal elections.

How much power, and how unchecked, depends on what variation of the theory you adopt. [Continue reading…]

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