Justice Ketanji Brown Jackson saw a related problem. In her view, because the state constitution creates the state legislature, the constraints contained in the constitution must apply to the legislature, even when it comes to the legislature’s power under the elections clause.
The “elections clause” in question is in the U.S. Constitution. Jackson’s insight is that the “independent state legislature” argument is incoherent because it asserts that the elections clause sets the legislature created by a state’s constitution above and apart from that constitution when it comes to federal elections. Which means under the ISL argument, state legislatures are supreme over even the laws which created them (or the courts who provide a check on them, or even the people who cast their votes. And, by extension (and implicit argument), supreme over the U.S. Constitution itself (because such legislatures are also supreme over the federal courts and federal election law).
Which is one helluva trick.
And this is where I seem to betray my acceptance of electoral outcomes like Herschel Walker nearly being the next Senator from Georgia. Because the really disturbing thing is that at least 2 Justices seem okay with that (even Thomas expressed some reservations). Crazy in the electorate is a feature, not a bug. Stone cold crazy on the Supreme Court bench is a problem.
We’re stuck with the electorate we have; that’s democracy. We shouldn’t accept complete fools on the bench, at any level. We get to choose those people.
The argument put forward by North Carolina, and implicitly accepted by at least Alito and Gorsuch, is that the Constitution is NOT the supreme law of the land in certain circumstances, and that democracy itself is subject to the majority vote of 50 state legislatures every 2 years without recourse, oversight, or exception. The focus in commentary has been on the power of legislatures to select Presidential electors contrary to the popular vote, but in line with party power. The situation is worse than that. North Carolina’s argument is that legislatures are supreme and unreviewable on any issue touching on federal elections.
Moore is a redistricting case.
Redistricting used to occur every ten years. The Supreme Court has held there is no restriction in the law that it can’t be done whenever the state legislature decides to ( which was not an ISL argument. The Constitution is simply silent on how often redistricting can be done.) So the argument from NC is: give the state legislatures unfettered authority over federal elections. What could go wrong?
As I say, the big concern is that at least two Justices seem to see nothing wrong (or even wholly insane) with this. Because it really is an either/or: either the Court allows the doctrine wholesale, and itself loses any authority over what state legislatures do with federal elections (creating a crazy quilt of 50 sets of rule which no one can contradict); or they say only special courts (like the Supremes) can retain any oversight, creating a whole new original jurisdiction for the Court (which is now set by the Constitution, a limiting factor on the Court establishing its own original jurisdiction; i.e., it can't do that), or the Court fashions a "sorta" doctrine which allows...well, whatever five Justices on the current bench want to allow. Which, of course, makes those five individual justices supreme and sovereign over federal and constitutional (state or federal) law.
The worst outcome is not what this ruling does to federal elections; that can be fixed with a Constitutional amendment (that's happened more than once before; it's extreme, but it's been done). The worst outcome is what this does to the entire system of judicial review and stare decisis, when what is allowed depends wholly on the ideology of 5 people who really don't care how it looks. It looks like we're already 40% of the way there.
Which is why I really hope Justice Jackson's argument brings the other 7 up short.
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