Editorial: If you like what the US Supreme Court just did, you’re going to love the next term
If you like the decisions the U.S. Supreme Court handed down this term, you’re going to be enraptured by what comes next. For the rest of us, though, the worst could be yet to come.
Worse than forced birth for rape victims and obscene new curbs, not on pollution, but on the EPA’s ability to regulate carbon emissions from power plants?
Here’s why it could be: In agreeing to review Moore v. Harper, the Supreme Court is taking up a case that could give state legislatures sole authority over the conduct of federal elections. If that happens, even the most extreme partisan gerrymandering and voter suppression could be deemed just dandy by state lawmakers, no matter what a state’s constitution or supreme court says.
And if that’s what the court decides, there will be no need to storm the U.S. Capitol to overturn the 2024 election. That’s because any state legislature could simply decide to replace the electors chosen by the popular vote with its own slate, just as former President Donald Trump and Rudy Guiliani pressured state lawmakers in Arizona to do after Trump lost in 2020.
Republican Arizona House Speaker Rusty Bowers testified under oath before the Jan. 6 committee that another Trump lawyer, John Eastman, urged him to unilaterally hold a vote to decertify and replace Arizona’s real electors. “Just do it and let the court sort it out,” Bowers said Eastman told him.
If the Supreme Court turned unchecked control of federal elections over to state lawmakers, how could any court “sort out” such power grabs?
The North Carolina case the court agreed to review concerns a GOP-engineered redistricting that the state Supreme Court rejected as having “subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage.” Of course, Republicans want that map reinstated.
It’s also Republicans, who not incidentally control 30 state legislatures, who have been pushing the idea that the U.S. Supreme Court should review something called the independent state legislature theory.
The Election Clause of the U.S. Constitution says the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”
Until now, the power of state legislatures to follow purely partisan impulses has been checked by courts. The Supreme Court has never recognized the Constitution’s election clause as bestowing unfettered control on state lawmakers.
As explained by New York University’s Brennan Center for Justice, disagreement over how to read the clause “hinges on how to understand the word ‘legislature.’ The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.”
But “proponents of the independent state legislature theory reject this traditional reading,” insisting instead that the Constitution gives “state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.”
Those proponents include Supreme Court Justices Samuel Alito, Clarence Thomas and Neil Gorsuch.
In North Carolina, state lawmakers themselves passed a law decades ago that gave state courts explicit authority to review redistricting plans.
But the question of whether the court would dare to undermine democracy, and whatever is left of its own credibility, has already been answered. Justices who once said that Roe was “an important precedent of the Supreme Court,” as Alito did at his confirmation hearing, or that it was “settled law,” as Brett Kavanaugh told Sen. Susan Collins it was, would absolutely dare.
Justice Elena Kagan, in her dissent on the climate regulation case decided last week, wrote that “The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”
Unfortunately, we can. Because the idea that this term was only a preview, as Thomas promised in the abortion case, is more frightening still.
© The Sacramento Bee
