Will the Supreme Court Help the Radical Right Unravel Democracy?

The Supreme Court’s conservative majority dramatically upended American life in their past session, including in their precedent-shattering ruling this summer that eliminated the federal right to an abortion. But in a forthcoming case this term, they could go even further, potentially throwing the democratic process itself into jeopardy. “I am extremely concerned,” former attorney general Eric Holder told Face the Nation on Sunday. “This is a very, very dangerous theory. It would put our system of checks and balances at risk.”

At issue in Moore v. Harper, which justices will consider in oral arguments Wednesday, is what’s known as the “independent state legislature” theory. With contemporary roots in William Rehnquist’s concurring opinion in Bush v. Gore, the widely-scorned theory was resurrected in 2020 by John Eastman as part of his efforts to help Donald Trump overturn his election loss to Joe Biden. The premise: State legislatures, a majority of which are controlled by Republicans, have ultimate authority over the elections process, with essentially no oversight or constitutional checks on their power. The petitioners in the North Carolina case have invoked the theory to get the high court to reinstate their gerrymandered congressional map, which the state Supreme Court struck down as racially discriminatory. But the implications of the case go well beyond gerrymandering: In the most extreme application of the theory, state legislatures could potentially disregard election results and appoint their own electors, as Eastman floated in a memo following the 2020 election. (When then Vice President Mike Pence refused to go along with the plan, Trump incited supporters to storm the Capitol in an effort to stop the certification of Biden’s victory.)

The independent state legislature theory is an outlandish one that has rightly been relegated to the fringes up until now. Even many conservative legal scholars fiercely reject it. “Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution,” as conservative former appeals court judge J. Michael Luttig, who advised Pence that he had no constitutional authority to do what Trump and Eastman wanted him to do January 6, wrote in the Atlantic in October. But the current iteration of the Supreme Court—stacked with right-wingers, three of whom were appointed by Trump himself—could bring the MAGA theory into the mainstream.

Four of the court’s conservatives—Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch—have previously appeared sympathetic to the theory. That doesn’t mean they’ll rule in favor of it in June, or that they would endorse it to the broad extent that Trump and his allies would like—especially given its lack of popularity across the political spectrum. It’s also unclear how Trump-appointee Amy Coney Barrett would decide. Given the absurdity of the arguments in favor of the theory, which hinge on a bogus interpretation of the word “legislature” in the Constitution that has been repeatedly dismissed by previous courts, one would hope for a “nine to zero opinion by the court that rejects this notion,” as Holder put it Sunday. “I would hope that the court would drive a stake through this notion of this independent state legislature doctrine and get it off the books and out of our consideration, once and for all,” Holder said. 

But there is good reason to be concerned that an increasingly radical Supreme Court—whose conservatives have come to act more as enforcers of conservative policy than the fair arbiters of law they cast themselves as—will make the far-right fantasy a reality. And that reality would have sweeping consequences for the election system and American democracy as a whole. “An affirmation of the theory would be a constitutional travesty,” Steven G. Calabresi, a founder and co-chair of the conservative Federalist Society, wrote in a Wall Street Journal op-ed Monday. A ruling in favor of the independent state legislature theory, he added, “would be a power grab and an assault on states’ rights, democracy and the original meaning of the Constitution.”