“A Theory With Big Consequences”: The Supreme Court’s Gamble With Democracy Appears to Be Veering Away From Extremism—For Now

An old CNN clip making the rounds shows a young Brett Kavanaugh, on the eve of the landmark ruling in Bush v. Gore, telling Wolf Blitzer that the real issue in the case was not the brazenness of judicially intervening in a contested federal election and choosing one candidate over another. “The real issue,” Kavanaugh said outside the Supreme Court, “is what does Article II of the Constitution mean in the first instance. And it delegates authority directly to the state legislatures” to set federal election rules. He added that what the justices “care about is how to interpret the Constitution — what are the enduring values that are going to stand a generation from now?” The rest, as they say, is history — and by a 5-to-4 vote, five Republican appointees would hand the presidency to George W. Bush. 

What Kavanaugh was advocating for at the time was a version of the so-called independent state legislature theory, which the Supreme Court, save for a concurring opinion by Chief Justice William Rehnquist, didn’t embrace at the time. In this nation’s history, it never has. Yet the theory, which should’ve remained dead and buried in the annals of the 2000 election, if not abandoned altogether, roared back to life and metastasized in the run-up to the 2020 election, inspiring a wave of scholarship, critiques, and the endorsement of at least four sitting Supreme Court justices — including from Kavanaugh himself, who wrote in 2020 that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections.” Bush v. Gore was becoming great again.  

Moore v. Harper, which the Supreme Court heard on Wednesday in a marathon session lasting nearly three hours, has democracy and voting rights advocates on high alert because many see it as the culmination of a campaign to supercharge election challenges, allowing federal courts to intervene in future contested presidential and congressional elections — a kind of Bush v. Gore on acid. The theory has its roots in two separate but distinct sections of the Constitution, each purporting to grant state legislatures exclusive oversight over the administration of presidential and congressional elections. The Moore case only deals with the latter section. The most extreme version under it, which could empower state legislatures to sow chaos after all votes have been cast, posits that legislatures, and they alone, have the last word on every aspect of election law. As Neil Gorsuch put it in one pre-2020 election challenge out of Wisconsin, that means “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

But do they? And does that mean other actors have no role to play in ensuring free and fair elections proceed in accordance with state law and other constitutional protections for voters? The dispute in Moore arose when the North Carolina Supreme Court, acting under authority granted to it by state law, invalidated extreme partisan legislative and congressional gerrymanders drawn by Republicans, benefitting Republicans. As that court saw it, the gerrymanders violated the state constitution’s decades-old guarantees of free elections, equal protection, free speech, and free assembly. One big irony of that decision is that North Carolina’s highest court was acting in response to the Supreme Court’s own ruling in 2018 — authored by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Gorsuch, and Kavanaugh — holding that partisan gerrymandering is not a thing federal courts have a power to hear, let alone fix. Which meant that state supreme courts could step into the gap and solve what five justices said was none of their business. 

If your head is spinning, it should be, because at Wednesday’s session a number of those same justices appeared very much interested in the opposite: that federal courts should have some authority to intervene when state courts misinterpret their own state constitutions — at least when federal elections or congressional maps are at stake. Thomas, whose own activist wife pressed state lawmakers to impose their will over the results of the 2020 election, sounded solemn when he referred to the “federal matter” of state legislatures deciding how federal elections ought to be run. (In 2013, citing Bush v. Gore, he was alone in suggesting that state legislatures today have “plenary” authority to select presidential electors themselves, without any help from the electorate. Yes, really.)

Neal Katyal, who ably represented North Carolina voters at the hearing, made it plain to Thomas and the other conservative justices that there is “very strong evidence” from the founding of the republic that other state actors, whether judges or election officials, could and did play a role in interpreting a state’s federal election rules — a necessary aspect of checking the work of rogue state legislatures. In other words, the theory is bunk. “The dog never barked,” Katyal told Thomas, by far the Supreme Court’s most ardent disciple of the late Justice Antonin Scalia’s school of interpreting the Constitution as originally understood. “Not a person said anything like that they were trying to create this strange animal,” he later added. Alluding to this early history, Justice Sonia Sotomayor, who sounded the most skeptical of supercharged legislatures at the founding, stopped just shy of accusing David Thompson, the North Carolina legislature lawyer, of rewriting history.

If the five justices who overruled Roe v. Wade taught us anything last summer, it is that constitutional law these days is decided by references to text, history, and tradition. And Katyal, as well as a number of Founding Era scholars, historians, and thinkers who filed briefs with the court ahead of Moore, left no doubt in their submissions that the independent state legislature theory is a monster with no precedent or analogue in American law. Gorsuch, who like Thomas is a self-described originalist who reveres the founders, didn’t seem to like all this evidence staring him in the face. And so he spent an inordinate amount of time on Wednesday trying to spin the independent state legislature theory as a kind of bulwark against slaveholding states, pre-Civil War, that wished to forever enshrine the original federal three-fifths clause in their own constitutions. At one point, Katyal seemed to have had it with that strange line of questioning, which Gorsuch simply wouldn’t let go of. “No position on that,” a frustrated Katyal charged.