Last week in part one of this essay, we examined Moore v. Harper, the North Carolina case that the Supreme Court will hear next term, which—among other things—could give state legislatures unchecked power to deliver presidential elections to the candidates of their choice, irrespective of the popular vote.
Given that 30 of the 50 state legislatures are controlled by the GOP, the Court’s upcoming ruling could be the coup de grâce in the ongoing Republican campaign to install itself in power permanently. Thanks to extreme gerrymandering that gives the Republican Party an all-but unbreakable hold on those bodies, that 30 state majority is unlikely to change, meaning that this case might serve as a fast-burning, fuel-on-the-fire accelerant toward the establishment of lasting, autocratic, one-party right wing rule in the US going forward.
Harper—sometimes called Moore; the hive mind can’t decide—hinges on the so-called “independent state legislature theory” (ISLT), a dubious legal concept concocted essentially for this purpose. (I refer you to the previous installment of this blog for the hideous particulars.) It is a theory that Vikram Amar, dean of the University of Illinois College of Law, calls “rubbish” and “as wrong-headed as it is treacherous.” In The Daily Beast, Wajahat Ali calls the ISLT “nonsense,” describing Harper explicitly in terms of the Supreme Court’s “Christian nationalist agenda” and part of an attempt to “implement minority rule.” He also notes that it is “exactly the crazy plan outlined by Trump-allied right-wing attorney John Eastman in his six-point memo, which a federal judge concluded was a ‘coup in search of a legal theory.’”
The question before us now is: Will the US Supreme Court allow this to happen? Indeed, will it play the crucial part of executioner delivering this death blow to anything resembling legitimate representative democracy in America?
I’ll save you a bunch of time, if you’re not in the mood to read on:
Of course it will.
READING THE TEA LEAVES
Last March, when the Court declined to hear an emergency request on Harper, four justices—Alito, Gorsuch, Thomas, and Kavanaugh—indicated that they would likely affirm the ISLT, should the opportunity arise. The first three voted to hear the case; Kavanaugh thought it was too close to Election Day, but suggested that the Court should consider the matter in its next term, which it has now agreed to do. And when it does, it’s almost certain that Barrett will join them in a 5-4 ruling for the GOP.
As Vox’s Ian Millhiser writes, “it’s hard to imagine why the (US Supreme) Court would agree to hear this case unless it is at least considering” endorsing the ISLT, and “rolling back decisions like Davis and Arizona State Legislature,” two landmark cases that rejected it, the former dating back to 1916, the latter reaffirming it in 2015.
Yet the whole Republican argument in Harper is dishonest from top to bottom. As the North Carolina state department of justice points out in its brief arguing against the GOP position, the NC General Assembly itself granted state courts the authority to review redistricting—the predicate for the suit—in a law it passed more than twenty years ago. It’s unlikely that Tar Heel Republicans would be bringing this case and challenging that precedent if Democrats controlled the Assembly.
Strike that. Replace “unlikely” with “laughable to imagine.”
Does anyone doubt that this far right cabal now in control of the Supreme Court will abet this travesty? Witness its recent rulings on guns, on abortion, on the once-inviolable separation of church and state, on the right of the EPA to regulate carbon emissions. This Court obviously relishes its power to remake America as Gilead, the will of the American people—and a reasonable interpretation of the US Constitution—be damned. The very demographic that once howled about “judicial activism” (when practiced by the left) has suddenly seen its advantages and become zealous converts to the idea.
I kid, of course—they’ve known it all along. These was no conversion, only subterfuge. IOKIYAR.
BECAUSE I SAID SO
When it comes to those recent decisions, many legal scholars, such as former acting Solicitor General Neal Katyal, noted the hypocrisy of the Court saying in the same week that the federal government can’t tell individual states to keep abortion legal, as it has been for 49 years, but it can tell New York state that it has no right to limit concealed carry of firearms, as the Empire State has done for 109.
The right wing pushback, of course, is that the Constitution specifically protects the right to bear arms but not the right for a woman to make her own healthcare decisions.
But it ought to be blatantly obvious that this argument requires a tortured interpretation of that Constitution. To cite just one example, so-called “originalists,” with their faux adherence to a specious, creationism-like legal philosophy, are forced to tie themselves into pretzels in order to convince us that “a well-regulated militia” does not mean “a well-regulated militia.”
And just because that grotesque distortion has become the accepted—if batshit—interpretation of the Second Amendment ever since Scalia (a pox upon him) laid it down in DC v. Heller in 2008 does not make it a rational one. Once upon a time the Supreme Court said that Black people were only 3/5ths human, too.
In Dobbs, Alito rejected the right to abortion as “not deeply rooted in the nation’s history.” (You mean the way slavery is?) Meanwhile, he and the other conservative justices have no problem extrapolating the Second Amendment’s definition of “firearms”—which in 1787 meant a flintlock that took a minute or more to load a single round of black powder ball ammo—to include a modern AR-15 with a cyclic rate of 400 rounds per minute (even without a bump stock), firing high-tech ammunition that can vaporize human flesh into a pink mist.
To say that the Founders meant to include such weaponry when they wrote the Bill of Rights is a Carl Lewis-like leap of arrogance, not to mention madness.
As for unenumerated rights, as Jill Lepore points out in The New Yorker, are we surprised that there is nothing “about abortion in a four-thousand-word document crafted by fifty-five men in 1787”? Nor “about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk”? That “There is nothing in that document about women at all”?
Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
But with the current Court and the right wing extremism that it stumps for, we are well beyond the realm of good faith and sound reasoning.
Those same yogi-like contortions are in play in Moore v. Harper in order to find that state legislatures are above their own constitutions, and their will takes precedence over fundamental principles of representative democracy as it is understood in the 21st century.
But we ought not be surprised, for these days, The Atlantic’s Adam Serwer writes, “The Constitution is whatever the right wing says it is.”
One of the most galling things about Moore v. Harper is that it mimics Dobbs in being another instance of the Court’s right wing justices assuring us that there is no cause for worry over whatever travesty they are perpetrating that week, then pulling the football away just as Charlie Brown approaches.
In a piece for the Washington Post, the Professors Carolyn Shapiro of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, Leah Litman of the Michigan Law School, and Kate Shaw of Cardozo Law Schoolwrite:
Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.
Harper invites the Supreme Court to go back on that promise.
Less than a decade ago, the court eliminated the Voting Rights Act requirement that jurisdictions with histories of racial discrimination in voting preclear changes to voting rules with the Justice Department or federal courts. And in July of last year, the court weakened what remained of the VRA, making it harder for plaintiffs to challenge voting regulations that impose disproportionate burdens on minority voters.
The Washington Post’s Editorial Board writes:
(With Harper) the Republican-appointed Supreme Court majority would complete a nasty bait-and-switch by neutering state courts when it comes to elections: Chief Justice John G. Roberts Jr. wrote in a 5-to-4 decision three years ago [Ed.: Rucho v. Common Cause] that federal courts could do nothing to prevent the same sort of extreme gerrymander. But never fear, he insisted, state courts could step in to protect citizens’ rights. Now, it seems, he and his colleagues on the right, with Justice Amy Coney Barrett a possible swing vote, are poised to go back on that promise.
That could lead to chaos if legislatures set burdensome rules for voting in federal contests that conflict with less restrictive rules for state contests. It could also create manifold opportunities for mischief of the sort then-President Donald Trump and his allies attempted in 2020: Legislatures might remain restrained from deciding to ignore the popular vote and appoint their own slates of electors after the fact of a lost presidential race, but they could plausibly pass laws ahead of time establishing a process that allows them to do just that.
Is it a coincidence that far right ideologues would like to install electoral power in state legislatures that they control, while undermining voting rights, keeping people away from the polls, and ensuring that their votes have as little impact as possible if cast at all? Or that they have spent decades packing the federal judiciary with jurists who will support just such efforts? Or that they are keen on legally codifying that sort of scheme, one that would have kept Trump in power, or could put him (o a fellow traveler) back there?
Rhetorical question. But just to be clear: no, it is not a coincidence. Not at all.
In the wake of Dobbs, many people wondered what rights are next to go?
In his concurring opinion on that case, Clarence Thomas explicitly rejected the flimsy reassurance offered by Alito and Kavanaugh, among others—“We’re only taking away abortion! We’ll stop there!”—proposing that the legality of contraception, same-sex marriage, even certain sex acts between consenting adults in the privacy of their own homes ought all be reconsidered.
And that will be only the beginning. In addition to birth control, marriage equality, and the Kama Sutra, we can look forward to a nationwide ban on abortion, which was immediately proposed even before the metaphorical ink was dry on Dobbs (so much for states’ rights), as well as prosecutions of Americans who try to cross state lines for such purposes, and the weaponization of technology to surveil anyone contemplating doing so.
Texas AG Ken Paxton has already said that, should the Court strike down protections under Lawrence v. Texas, he will begin enforcing Texas’s antiquated and currently unconstitutional law against sodomy. Fwiw: that’s the same Ken Paxton who is under federal indictment for securities fraud, who filed a Big Lie lawsuit trying to overturn the 2020 results in Pennsylvania (!) and three other battleground states, who said the Uvalde shooting was part of “God’s plan,”and proposed arming teachers in the future. Most recently, the Washington Post reports that just this week Paxton has “sued the Biden administration over federal rules that require abortions be provided in medical emergencies to save the life of the mother, even in states with near-total bans.”
So he’s obviously a pariah to Texan voters, right? Uh, no: he just beat George P. Bush, scion of the Lone Star State’s once-preeminent but now apparently defunct political dynasties, in the GOP primary for re-election. Because, Texas.
Not a few observers noted that in his wish list to Right Wing Santa, Justice Thomas left out interracial marriage. Hmmm.
Conservatives were quick to retort that, like Roe, Griswold and Lawrence—the contraception and sodomy cases—were decided on grounds of substantive due process, which is to say, privacy, while Loving was premised on the Fourteenth Amendment’s guarantee of equal protection. (RBG and others have long felt that from the start abortion ought to have been protected the same way, for a more durable judgment. She proved tragically correct.)
Obergefell, however, was very much decided on equal protection, just like Loving. Yet Clarence is still keen to overturn the former and not the latter. Hmmm again.
In truth, the broader troglodyte / slash / religious fanatic right wing of which Thomas is part would surely love to end interracial marriage too, and this Court could easily concoct a pretext to do so, even if Clarence personally isn’t onboard for his own selfish reasons. He is certainly super keen to strip away similar rights in every other area that doesn’t directly affect him.
Justice (and Mrs.) Thomas clearly want to take us back to a deeply regressive vision of America, and while his proposals once seemed outlandish and unlikely to succeed, Dobbs ought to have convinced us otherwise. Lest we forget, his “outlier” thinking has triumphed before. Way back in 1997, Thomas was the first justice to embrace the aforementioned, then-fringe theory that the Second Amendment guaranteed an individual right to own firearms. Eleven years later, his view became settled law in DC v. Heller.
But as Corey Robin writes in The New Yorker: “A society with no rights, no freedoms, except for those you claim yourself—this was always Thomas’s vision of the world. Now, for many Americans, it is the only one available.”
WE RESERVE THE RIGHT TO REFUSE SERVICE
With this radical Supreme Court wantonly stripping away a constitutional right (by some accounts, for the first time in history), in defiance of overwhelming popular opposition, while implying that more rights may soon go too, people are understandably upset. But to hear Fox Nation tell it, the real crime is that Brett Kavanaugh had to duck out the back door of a Washington DC steakhouse to avoid protestors out front.
Speaking of the Constitution, the First Amendment protects freedom of expression and assembly. Violence, threats of violence, intimidation, and harassment will always be out of bounds. But as Pete Buttigieg cogently and calmly schooled Fox’s Mike Emmanuel, who tried to bait him on the matter, being subjected to criticism and peaceful protest is part of the bargain for being a public figure. Especially if you’re gonna piss off 60% of all Americans by endorsing the ideology of forced birth.
(Height of irony alert: the Fox News exchange was prompted by Stephen Miller complaining that a tweet from Buttigieg’s husband Chasten—“Sounds like (Kavanaugh) just wanted some privacy to make his own dining decisions”—amounted to an endorsement of “mob intimidation tactics” and was “wildly irresponsible.” I’ll repeat that: That gripe came from Stephen Miller.)
Personally, I hope Kavanaugh, Alito, Thomas, Gorsuch, and ACB never have a peaceful meal in public ever again. But that’s just me. As the meme goes, Brett can always eat at a restaurant in another state. (Hope they have a liquor license!) But really, he shouldn’t have let himself get hungry in the first place.
OF A-BOMBS AND ANALOGIES
Writing in The Intercept, Naomi Klein describes the Court’s recent actions as “a shock-and-awe judicial coup,” which she correctly reminds us “is by no means over. Contraception, same sex marriage, integrated lunch counters—it is terrifyingly easy to imagine all of them vanishing from the American landscape. Few people, however, have thought that the very concept of one-person-one-vote would be on the chopping block. Until Harper.
But mark my words: Dobbs was the Sudetenland.
When it comes to handicapping the Court’s thinking on Harper, Klein also writes: “There is no reason to believe that a group of people whose very presence on the bench required grotesque abuses of democracy would somehow draw the line at thwarting it.”
She adds (and this is the important part): “The moment to stop them from getting the chance is right now.”
Following the Court’s disastrous ruling in West Virginia v. EPA, restricting that agency’s authority to limit carbon emissions, Klein suggested that this flurry of appalling decisions offered a rare opportunity for progressives, on the principle of never-let-a-crisis-go-to-waste:
History contains crossroads when a single set of decisions can alter the trajectory of a people—or even a planet. The Biden administration’s response to the Supreme Court’s 6-3 EPA ruling, hot on the heels of the other outrageous power grabs, is a moment like that. No juncture offers greater opportunity for courageous, transformational leadership, should such a thing be on offer anywhere in Washington, DC.
But she wrote that on June 30, almost three weeks ago. The moment for such bold action may have now passed. If not, we need to get Biden to act immediately, as the window narrows daily.
The first rule of an emergency is that you do what it takes to end the emergency and get to safety. You don’t throw up your hands because the task is too hard. You certainly don’t let a gang of unelected, lifetime appointed political operatives—several of whom only have their seats because of trickery and lies—get in your way.
But it is not enough that we leave the counterattack to Joe Biden, and tut-tut if he falls short. We have to act, ourselves, as concerned citizens.
It’s hyperbole of course, to use the metaphor of an atomic bomb to convey the damage that Harper can do. But I stand by it, poetically speaking. The Republican campaign to undermine American democracy has been a slow and grueling struggle of island-hopping, like the war in the Pacific (loath as I am to cast them in the role of the Allies), from gerrymandering to packing the American judiciary with far right judges to sabotaging voter access with neo-Jim Crow-like restrictions. But Harper is like the atom bomb at the end of that campaign, putting a definitive end to resistance once and for all.
I have written elsewhere about the myth that the Bomb won the war, and the same applies in this analogy. Japan was ready to surrender before the nuclear attack on Hiroshima. Is blue America similarly already defeated, even before the Supreme Court drops the Bomb? Or will we stand our ground and resist the rise of autocracy, even with five black-robed bombardiers in a B-29 overhead?
Illustration: Artist’s rendering of American democracy after Trump’s Supreme Court gets through with it.