Commentaries on the oral arguments in Moore v. Harper

The ones in red circles are fixin’ to fix 

American democracy by damaging it, 

or destroying it completely

Multiple sources are commenting in yesterday’s Supreme Court oral arguments in the Moore v. Harper case that will decide about the independent state legislature doctrine (ISLD). The ISLD holds that state courts cannot interfere much or at all with rules state legislatures make to control elections. Deciding in favor of a robust vision of the ISLD would leave legislatures free to subvert elections and suppress voters. 

A robust vision of ISLD would give red states the power they want to destroy democracy in America. This would roughly parallel how Viktor Orban destroyed democracy in Hungary after being elected into power in 2010. After 2010, national elections in Hungary were rigged and Orban could not lose.

Observers of the oral arguments in Moore suggest there is significant disagreement among the six radical right Republicans. The three Democrats are hostile to ISLD. Three of the radical Republicans are sympathetic to it (Alito, Thomas, Gorsuch), but three are apparently conflicted about it (Roberts, Kavanaugh and Barrett). The conflicted ones apparently do not want to appear to be what they actually are, i.e., partisan Republican Party politicians wearing black robes. 

This is a real surprise to me. I did not imagine that Kavanaugh or Barrett would have any qualms about an appearance of being radical right Republican politicians. Those two are Republican Party fire breathers. I figured they just didn't care about the appearance or actuality of partisanship. 

Politico writes:

The spotlight for Wednesday’s oral arguments was focused on three of the high court’s six conservative justices: Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.

Those three justices will likely serve as the deciding factor in any decision. The court’s three liberals were extremely hostile to the theory during oral arguments, while the three other conservatives have signaled sympathy for a muscular version of the theory, both in previous writings and during arguments in front of the court on Wednesday.

Questioning from Roberts to David Thompson, who was representing the Republican legislators, showed hostility to the independent state legislature theory.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said, citing a 1930s Supreme Court case that found that the U.S. Constitution didn’t prohibit governors from vetoing a congressional map passed by legislatures.

But later, Roberts’ questioning to Neal Katyal, who represented the groups that challenged the initial legislatively drawn maps, showed how some of the court’s swing conservative justices could still potentially rule in favor of the GOP lawmakers without embracing the most robust interpretation of the independent state legislature theory. Roberts seemed to be potentially probing for a way to constrain state courts in some way, particularly on what could be decisions based on broad constitutional provisions.

“Do you think the phrase ‘fair and free elections’ is providing standards and guidelines?” he asked Katyal, who responded affirmatively.

That suggests that the three conflicted ones will look for some version of ISLD that looks and maybe is less extreme than what they actually want but are hesitant to impose for the sake of political optics. A brilliant analysis by Above the Law points to the conflict between optics and the underlying Republican radicalism that are pushing in opposite directions, for and against the ISLD: 

If one were so inclined, the smart money said the Supreme Court would functionally cancel democratic elections, or to be more technical, “cancel any check on gerrymandered state legislatures from erasing elections if they wanted to.”

As the argument unfolded, three distinct camps emerged, with Jackson, Kagan, and Sotomayor opposed to the whole goofy theory; Alito, Gorsuch, and Thomas thrilling at the prospect of authoritarian rule; and the Chief, Barrett, and Kavanaugh wishing there was some way to let Republicans gerrymander at will without turning North Carolina elections into North Korean elections.

Neal Katyal went right at the conservatives with receipts — straight up calling his shot, announcing that he’d been “waiting for this case” so he could unload his can of originalism on Justice Thomas — quoting back their own opinions from every time the shoe was on the other foot, prompting a series of blubbering exchanges from the frustrated justices. His exchange with Gorsuch set the tone. The justice asked Katyal for “one example” of the Court employing Katyal’s theory. He cited a 19th century example. “*grumble* Put that aside!” He cited another. Gorsuch rants and raves trying to figure out why he hadn’t researched this point.** 

** He didn’t research the point because of (i) his rigid authoritarian ideologue radicalism, (ii) his blinding loyalty to the Republican Party, and (iii) normal human confirmation bias and motivated reasoning. All of that allows him to be comfortably and arrogantly self-deluded. All of this is obvious human cognitive biology and social behavior stuff.

Alito concocted a hypothetical about a rogue state supreme court that needed to be brought to heel. Yes… Samuel Alito raised the fear that a court might ignore law and precedent for political gain. You really can’t make this stuff up! Alito is having himself an all-timer week for unintentional comedy. 

Don Verrilli and Elizabeth Prelogar also took turns at battering the GOP theory, with the conservative justices growing quieter if no less strident as the event wore on.

But amid all the twists and turns from Justice Kagan’s incisive questioning (not-too-far-off translation by Professor Leah Litman: “So this theory could end our democracy. Response?”) to Justice Gorsuch arguing that the independent legislature theory is how pre-Civil War Virginia was a bulwark against the 3/5ths clause (or some nonsense), Justice Jackson delivered the most devastating body blow (no transcript… so this may be inexact):

I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.

Yes. She actually asked this question in different phrasings a few times, but it’s really the only question anyone needs to answer. If state constitutions create state legislatures then how can state legislatures violate state constitutions. It ceases to be a constitutionally ordained legislature at that point!

It’s a chicken and egg problem — except it’s more like which came first the chicken or my dinner tonight — with a single obvious answer. If the state constitution sets guardrails of voting rights and the proper deference required to courts and the executive, then the legislature can only work within that.

At the top of Katyal’s argument he cited the two centuries of election law and declared that it would be “a whole lot of wrong” if “Legislature” meant what the GOP asked for as opposed to how Justice Jackson posed her question.

Occam’s Razor remains undefeated.

Make no mistake, Chief Justice Roberts is on record buying into a watered down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance. But whatever compromise the conservatives try to mold will remain haunted by Jackson’s straightforward question.

Which came first, the state constitution or the state legislature? It’s the constitution. It’s always going to be the constitution.

So, it looks like we will probably get a less than absolute version of the ISLD and American democracy will take a serious but not quite lethal body blow. Less likely, but still possible, is the full blown version of ISLD that Thomas, Gorsuch, and Alito want for the final fix to what ails democracy as they see it. 

As I’ve argued here before, we do not know how the court decides cases because the court shields its decision-making process from public scrutiny “for obvious reasons.” The obvious reasons have never been publicly stated and they probably never will be. 

That unjustifiable secrecy provides the time and opacity needed for the three hyper-radicals, Thomas, Gorsuch, and Alito, to convince at least two of the three conflicted ones to join them in finally killing off American democracy by imposing full-blown ISLD on all of us. A 1973 paper, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, criticized the Supreme Court’s opaque decision-making like this:

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. .... We maintain that the secrecy which pervades Congress, the executive branch and courts is itself the enemy. .... For all we know, the justices engage in some sort of latter-day intellectual haruspication, followed by the assignment of someone to write an opinion to explain, justify or rationalize the decision so reached. .... That the opinion(s) cannot be fully persuasive, or at times even partially so, is a matter of common knowledge among those who make their living following Court proclamations.

It feels like there will probably be some nasty haruspication** in American democracy’s future.

** Haruspication: divining truth from a pile of fresh animal guts