From the Supreme Court of the United States, it would appear the worst is yet to come, and considering the extent of America’s foundational damage already traceable to its top legal minds, no one who’s paid a lick of attention should be surprised.
It would be hard to imagine a more corrosive decision than the one the court rendered in 2010’s Citizens United case, which overturned only about 100 years of campaign finance restrictions, thus allowing corporations and the billionaires who run them to spend at will on elections.
By one informed estimate, billionaires spent $31 million on elections in 2010. This year, they’ll spend $1.2 billion, pumping in about 39 times the toxicity of what the election cycle held just 12 years ago. So what could be worse?
As Justice Brett Kavanaugh might say, “Hold my beer.”
In June, the Supreme Court threw out 50 years of established law (Roe v. Wade), deciding instead that while the 14th Amendment to the Constitution protects some rights, they do not include a woman’s right to choose whether to continue a pregnancy.
Kavanaugh, one of three court appointees installed by Donald Trump, whose legal scholarship never moved from the congenital belief that the law does not apply to him, thus joined with fellow newbie justices Neil Gorsuch and Amy Coney Barrett to construct a 6-3 majority that stripped half the population of its bodily autonomy and threatened the health of some 40 million women.
Court watchers and legal mavens were doubly struck by an addendum to the majority decision authored by Justice Clarence Thomas, the reliable arch-conservative, in which he offered support for ending all of the 14th Amendment’s unenumerated rights, including the right to birth control, private sex acts and interracial marriage.
Justice Thomas’ own marriage is interracial. He’s Black. She’s a white insurrectionist. But that’s another column.
By astonishing coincidence, confidence in the Supreme Court is at an all-time low.
Soon enough, however, the court will hear what some legal historians are calling the most important case in American history, and probably not because legal historians are prone to hyperbole.
If the plaintiffs in a case out of North Carolina, Moore v. Harper, which the court will review in the next few months, can convince the justices that something called the Independent State Legislature Theory is, you know, a thing — then elections as we’ve come to understand them will no longer exist.
The one coming up Nov. 8 will be the last election in which the will of the voters cannot be trumped by the will of the state legislatures, unless the court rules the Independent State Legislature Theory is not, again, a thing.
“There is literally nothing at all in the Constitution, or in the history of the founding of our country or the framing of the Constitution that even hints at the possibility of such a theory,” says retired federal Judge J. Michael Luttig, who’s been writing on the topic in The Atlantic and appearing on some cable news shows. “The only argument at all is simply that the election clause empowers the state legislatures to prescribe the manner of holding the Congressional elections, therefore the state courts have no role whatsoever. That’s not tenable under any of the normal tools of Constitutional interpretation.”
The Independent State Legislature Theory, suddenly wildly popular among gerrymanderers, election deniers, vote suppressors, red state political hacks and inveterate Trumplicans, is that since the Constitution puts state legislatures in charge of elections, no state court or state Supreme Court has any jurisdiction on election disputes. There are no more checks and balances. The people who make the election rules can, conceivably, restrict voting access with impunity and throw out the results if they don’t like them.
I should note here that the Supreme Court declined to take this case in December of 2020, and that Luttig himself, a conservative legal icon whom Vice President Mike Pence leaned on in the days leading up to Jan. 6, 2021, is on record saying he doesn’t think the current court “will embrace” the theory.
But there remains a sense that at least five of the nine justices are very interested in the argument, which has its roots in the Bush v. Gore legal showdown of 2000. The fact that they’re willing to hear it now is thoroughly ominous.
“Our government will be run by and for the politicians, not the people,” said Suzanne Almeida of the watchdog group Common Cause on a conference call last week. “The danger is not just that partisan political leaders will handpick winners and losers, it’s that we the people will no longer have a fully representative government.”
All that’s at stake, in other words, is democracy itself — your right to choose your own leaders, which is definitely still a thing.
For now.
———
