Moore v. Harper is a case before the Supreme Court that legal experts agree could upend American democracy. In this case, conservative lawyers are asking the court to give state legislatures absolute power over state and federal elections. (See story here.)
This is a prescription for minority rule. The notion that gerrymandered legislatures speak for “the people” is a charade; in Wisconsin, in the 2018 elections, Republicans won 66 of 99 legislative Assembly seats with 45% of the popular vote. That’s a legislature the people can’t dislodge.
At least three conservative justices are known to support what is called the “independent state legislature” (ISL) theory. Before delving into it, some background is required. All three of Trump’s SCOTUS appointees are Federalist Society members. A core ideology of this group is “originalism.” That’s a method of interpreting the Constitution based on what its authors intended. There are two things to know about it.
One, conservatives like the idea of basing our current laws on the long-ago thinking of white men who owned slaves and didn’t let women vote. Two, they use originalism as a convenient excuse for the results they want, departing from it when it doesn’t suit their purposes. (The Second Amendment was intended for flintlock muskets, not AR-15s.)
At this point I’ll interject that the true nature of the Constitution is a social contract that gets renegotiated by succeeding generations over time. Some of the renegotiation occurs through the amendment process, but it also occurs through a reinterpretation process that occurs in the courts. It’s a living agreement we have with each other that enables us to live together peacefully.
This, by itself, makes the Supreme Court’s fixation on “original intent” flawed, because freezing the Constitution’s meaning at 235 years ago deprives it of the ability to continue serving the political needs of our constantly changing and evolving society. We’re not talking about Moses’ tablets, although conservatives want to treat the Constitution that way (when it serves their purposes). On top of that, they contend the agreement is what they say it is, and we can’t change it. For example, the framers made no provision for privacy rights; according to originalism, tough luck.
But the problem doesn’t stop with Trump and McConnell stocking the Supreme Court with originalists. Their justices are also playing fast and loose with facts, and they may decide Moore v. Harper based on fake history. The details are too involved to explain here; I refer you to the Mother Jones article here, which explains it in depth. That isn’t even originalism; it’s invention; when lawyers do that, it’s unethical, but that’s how this court is making decisions. (That’s not the only unethical conduct we’re seeing from this court, if you’ve been paying attention.)
Anyone who studies logic knows facts lead to conclusion. If it’s raining outside, you bring an umbrella. The fact it’s raining precedes — and determines — the decision to bring an umbrella. But that’s not how this court works. As a University of Michigan law professor quoted by Mother Jones puts it, what they’re doing is “suggestive of a court that is reaching for facts in service of a conclusion rather than looking at the facts and trying to figure out what the facts are before reaching a conclusion.”
As Mother Jones points out, in multiple cases now they’ve changed or invented facts to suit the result they wanted to reach. The last time we saw this, President George W. Bush was “fixing facts to a conclusion” to justify his war against Iraq over weapons of mass destruction that didn’t exist. That cost 4,507 U.S. military personnel their lives; the Supreme Court’s games could cost us our freedom to elect whoever we choose.
By playing these games, the Republican justices are going outside the rule of law. We’re in danger of becoming a sort of Iran where we’re ruled by conservative clerics we can’t vote out of office who do things like reinstating discrimination in American society. But few people read Mother Jones, even fewer this blog, and the average American is clueless about this stuff. Unless Democrats find a way to stop this court, I think we’re gonna be screwed.