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The Supreme Court Seems Less Inclined to End Democracy Than Before

Slate 12/8/2022 Dahlia Lithwick
Justice Elena Kagan at the Supreme Court in October. Olivier Douliery/Getty Images © Provided by Slate Justice Elena Kagan at the Supreme Court in October. Olivier Douliery/Getty Images

Moore v. Harper, the crucially important case heard at the Supreme Court on Wednesday, centers on a fundamentally unserious idea. North Carolina Republicans, defending an unconstitutional gerrymander, insist that state legislatures possess virtually limitless power to regulate elections. This silly notion is loosely planted in something called the “independent state legislature theory”—a bit of post hoc fan fiction about a Rehnquist concurrence that only garnered three votes in Bush v. Gore, a case that was meant to be good for one ride only. The fake constitutional history supporting this nonexistent constitutional doctrine is so lacking in substance that it was almost impossible to believe that the high court could spend three hours taking it seriously.

The results were almost beyond parody: At one point, the North Carolina GOP legislature’s lawyer, David Thompson, in court to argue that the power to set election procedures is unreviewable by state courts, said that he would soon prove that this was the express intent of virtually all of the colonies from the jump. Justice Sonia Sotomayor mustered a terse response: “Yes if you rewrite history, it’s very easy to do …”

As my colleague Mark Joseph Stern explains, the sledding only got rougher for Thompson from there. He ended up conceding away big hunks of his case, including the fact that a governor could exercise a veto over a state legislature, and also that the North Carolina Supreme Court decision in this matter was correct on the merits, but irrelevant to his case. But a fascinating aspect of Moore v. Harper as argued on Wednesday morning was the ample evidence that like the public itself, various members of the Supreme Court seem to be inching away from blatant democracy-busting as a strategy in a partisan war over democracy.

It’s a trend. There is no disputing that election deniers and coup enthusiasts were roundly shellacked in the midterms. Vigilante violence at polling places didn’t end up happening. Polls show that for voters, protecting democracy was a huge motivator and priority. Even the most rabid voices attacking election integrity ended up conceding defeat, and the handful who refused were ignored into oblivion. It is at least plausible that the midterms, in tandem with Donald Trump’s rapidly plummeting fortunes, prove that Americans prefer that their democracy play out at the ballot box, and not—with all due respect to Ginni Thomas—in backroom deals about fake electors. Efforts to invalidate election results through vote suppression, election subversion, personal manipulation, and even, at worst, violence are not a winning program with voters, it turns out.

And that was exactly what Moore v. Harper was attempting to turbo-charge. It’s a bogus theory that makes a mockery of both elections and of legislative efforts to protect elections. Perhaps it was unsurprising that Justice Amy Coney Barrett, Chief Justice John Roberts, and Justice Brett Kavanaugh each expressed fundamental misgivings at Thompson’s maximalist vision of doing away with checks and balances. Justice Elena Kagan, explaining what is at stake under the broad contours of the independent state legislature theory, put it this way to Thompson:

This is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy even if the courts think that that’s a violation of the constitution. It would say that legislators could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves and to give themselves a role in the certification of elections and the way election results are calculated. So in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.

What Kagan put into words was something that transcended the usual my team/your team rhetoric, and sounded much more urgent than some of the both-siderism we kept hearing about how much this case turns on “whose ox is being gored” (Clarence Thomas) or that lawlessness was “in the eye of the beholder” (Ketanji Brown Jackson). (If there is anything more meta than a Supreme Court that has so often tilted into lawlessness pondering how to curb judicial lawlessness, I can’t quite imagine what it would sound like.) But Kagan played this out in a comment that seemed both heartfelt and brutally honest when she told Don Verrilli, representing the state of North Carolina, that she had been reflecting on “how very good judges on very good courts can find it incredibly easy to disagree with each other.” She added, somewhat wistfully:

I think that every single one of us on this bench has written opinions at times, saying that other judges, whether it’s other judges on this Court or lower court judges, have engaged in policymaking rather than in law. …. I mean, it’s just sort of one of the things that judges say when they really disagree with another opinion … these are things that judges say to each other all the time.

Suddenly, she didn’t seem to be talking about the North Carolina legislature and its partisan gerrymander, so much as deploring the rhetoric deployed by jurists with whom she serves. And if I am correct that at this point in the arguments, we were talking less about checks and balances than about partisanship and tribalism and accusations of bad faith, former Solicitor General Don Verrilli certainly picked up on that theme when he offered this a few moments later:

If I could, there’s just one last point I would like to make about whose ox is being gored here, which I think is quite important. Actually, there’s a great deal of sentiment in this country about the problems with extreme partisan gerrymandering and this Court’s opinion in Rucho acknowledged it. And states have actually responded in nonpartisan ways. I can think of four states, New York, Florida, California, and Ohio, all of which are in the control of one political party where presumably the incentives would have been lined up to maximize partisan advantage through the redistricting process, but in all four of those states, they amended their constitutions through the work of the people to restrict partisan gerrymandering and those provisions have been enforced. … And so, I do think it is more than whose ox is being gored.

We can be better than this, he was urging, and some states have done better. It seemed to me that both Kagan and Verrilli were making a pitch toward democracy-affirming solutions that would put democracy ahead of partisan brinksmanship on existential questions around voting rights, checks and balances, and the will of the people.

If some of what was leaching into the arguments in Moore was a kind of high-level modeling of what it would mean for judges and legislatures to back away from the zero-sum democracy-busting that has been repudiated by the voting public in recent weeks, it surely had the effect of sounding strange, really strange, in a zero-sum democracy-busting case before an ever more win-at-all-costs democracy-busting court. But given that the country seems to have lost its appetite for that kind of politics, and rhetoric, and governance, at least a little bit, perhaps it is fitting that this could be the case in which the Supreme Court could begin to back away from dangerous anti-democratic ideas as well.

To be sure, a “compromise” position between batshit insane and functional jurisprudence could still lead to a horrible outcome in Moore: Even the minimalist reading of the independent state legislature doctrine could undermine checks and balances and election law. The prospect of a “compromise” that would give any credence at all to the ideas of John Eastman and his confederates, who sought to overturn the results of the 2020 election, is not a “win” by any stretch. But in an argument again marked by interruptions and potshots and snark, what Kagan and Verrilli seemed to be offering up was a different, more sober tone—a kind of offramp from mutually assured catastrophe. It may not survive the power-wash of opinion drafting and compromise, and it may not kill off ISLT altogether, but it’s a powerful key change at a court that’s been all too willing to burn it all down, for far too long.

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