WASHINGTON, DC – OCTOBER 07: L-R: Associate Justice Clarence Thomas, Associate Justice Samuel Alito, and Associate Justice Neil Gorsuch, pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. (Alex Wong/Getty Images)
The U.S. Supreme Court has rejected a fringe legal theory often invoked by Republicans as legal justification for overturning the results of the 2020 presidential election.
The Court ruled 6-3 on Tuesday against adopting the “independent state legislature theory” — the concept that under the Constitution, only state legislatures have the power to regulate federal elections, and that state courts may not interfere. The case, Moore v. Harper, arose when the North Carolina state legislature essentially ignored a state court ruling striking down a gerrymandered districting map, and enacted another gerrymandered map for use in the 2022 elections.
Republican legislators argued that North Carolina’s highest court had no power to regulate federal elections, because the U.S. Constitution’s Elections Clause forbade the courts’ involvement. During marathon oral arguments in December, Justice Elena Kagan warned that giving state legislatures unfettered control over election laws without judicial checks and balances would risk democracy itself by allowing states to adopt all manner of voting laws that would violate well-settled Constitutional standards.
Chief Justice John Roberts penned the 30-page opinion for the Court’s six-member majority. In it, Roberts leaned on reasoning that would typically be irresistible to his conservative judicial brethren: that founding-era history demands that state election laws be subject to judicial review.
“Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth,” Roberts wrote, referring to the case of Marbury v. Madison, the cornerstone precedent establishing judicial review.
Roberts continued, conspicuously mentioning Alexander Hamilton, the founding father with whom Justice Clarence Thomas, who led the dissent in this case, has often taken issue (citations removed):
Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.
During oral arguments, attorney David H. Thompson, making a legal argument some have called “deranged” and “nonsensical,” argued that Alexander Hamilton, Philip Schuyler, and Federalist 78 all support the independent legislature theory — but Roberts bluntly disagreed and took the chance to school both the losing defendants as well as Justice Thomas on some history.
“The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life,” began Roberts. “Legislatures, the Framers recognized, ‘are the mere creatures of the State Constitutions, and cannot be greater than their creators.'”
Referring repeatedly to the losing arguments of “the defendants and Justice Thomas,” Roberts also took the chance to point out that Thomas had very different feelings on another historical character too. The Moore defendants had argued — as did Thomas in his dissent — that former Supreme Court Justice Joseph Story, who sat on the Court from 1812 to 1845, believed the Elections Clause prohibited courts from reviewing state elections laws.
An unconvinced Roberts noted that “Story’s comment elicited little discussion,” and reminded Thomas of his own take on the value of Story’s take on the matter. Roberts quoted Thomas’ own words from a 1995 dissent in which Thomas said Story’s opinion, “reflects the views of a jurist who, although ‘a brilliant and accomplished man, . . . was not a member of the Founding generation.'”
Justice Brett Kavanaugh joined the majority in the ruling, but authored a brief concurrence to make an additional point: when courts do review state election laws, they should be appropriately deferential to the will of state legislatures just as they are in other cases.
Kavanaugh used his concurrence to point out that in Bush v. Gore, a case on which both Kavanaugh and Roberts personally worked as attorneys, then-Chief Justice William Rehnquist offered a framework for just how courts should review state election laws.
“In the future, the Court should and presumably will distill that general principle into a more specific standard such as the one advanced by Chief Justice Rehnquist,” Kavanaugh offered.
Thomas’ 27-page dissent began with a statement that he would have dismissed the case as a “straightforward case of mootness.” Justices Neil Gorsuch and Samuel Alito agreed and joined the dissent on the mootness issue.
However, only Gorsuch shared Thomas’ take on the independent state legislature theory. Both justices agreed with the North Carolina lawmakers who argued that state legislatures’ decisions about elections are based on the federal Constitution, rather than state Constitution.
Thomas also denounced the majority’s decision as vague and difficult to enforce.
“In many cases, it is difficult to imagine what this inquiry could mean in theory, let alone in practice,” Thomas wrote.
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