The Supreme Court—boy, I don't know
Oral arguments in Moore v Harper
I wrote last week about the upcoming Supreme Court case Moore v. Harper, which concerns the “independent state legislature” theory—the idea that the Constitution grants state legislatures specifically some unique level of authority over the administration of federal elections. Yesterday, the Court heard oral arguments in Moore. I put together some quick thoughts for The Atlantic:
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.
You can read more here.
The bottom line is that the Court (possibly with the exception of Justice Gorsuch) seems uninterested in the more extreme versions of the theory that would have the power to totally upend American election administration. That’s good news. The less-good news is that the justices seem interested in moving toward a “moderate” iteration of the theory that nevertheless would give far too much credence to a legal argument that, until recently, would have been considered completely bananas. As Kate Shaw writes in Just Security, “A partial victory for the ISLT is still far more than the theory warrants.”
Over the last few months, in the run-up to oral argument in Moore, there seemed to be what’s known in the business as a vibe shift around the independent state legislature theory. With the case on the Supreme Court’s docket, academics began coalescing around the idea that the Court could or should move toward a more “moderate” vision of the theory. Some of this might have been damage control. Some of it might have been a recognition of the opportunity to shape the Court’s thinking on an issue that the justices hadn’t considered before. But either way, you started to see both supporters and critics of the theory setting out a range of different ways that the Court might rule beyond a binary of entirely rejecting the theory or entirely endorsing the most extreme interpretation.
The justices’ approach to Moore at oral arguments yesterday suggests that this effort may have been successful. After argument finished, Will Baude, who along with Michael McConnell set out one of the prominent “moderate” visions of the theory in The Atlantic in the weeks before argument, triumphantly reposted a link to his Atlantic piece on Twitter.
If you’re interested in more, I’d recommend my Lawfare colleague Scott Anderson’s excellent interview with election law scholars Ned Foley and Derek Muller, which you can hear on the Lawfare Podcast.
Well said! Can't triangulate truth and a lie.