The "independent state legislature" scheme is a scam, and even this court seems to get that

The lawyer advancing the scheme faced anywhere from skepticism to outright indignation from the justices. With one notable exception: Justice Neil Gorsuch.

Photo by Jimmy on Unsplash

After almost exactly three hours of arguments on Wednesday, the idea that the “independent state legislature” scheme will become accepted as the “independent state legislature” doctrine appeared unlikely.

For those who feared the worst from Moore v. Harper, democracy seems to have avoided today’s worst-case scenario. Again.

Accepting the “independent state legislature” concept would mean that state legislatures are not subject to state court review of their election decisions — things like election rules and redistricting — on state law grounds and, as the argument goes, would not be subject to state constitutional limits, basically, at all.

A healthy majority of the Supreme Court — truly, everyone except for Justice Neil Gorsuch — expressed at least some misgivings with the furthest reaches of David Thompson’s arguments for the Republican North Carolina lawmakers advancing the scheme.

Justice Sonia Sotomayor summed up the mood on the left, saying at one point that Thompson’s argument “makes no sense” to her and — most strikingly, by Supreme Court argument standards — responding extremely pointedly to his claim that he could show that history supports him.

“Yes,” she said. “If you rewrite history, it’s very easy to do.”

While no one else went quite as far as Sotomayor did, many justices were openly skeptical of the historical claims, the standards he advanced, and the consequences of the “independent state legislature” concept. Justice Ketanji Brown Jackson, for her part, took a tack in arguments — “[I]n order for us to have a thing called the legislature, we have to look at the state constitution,” she said at one point — that I wholeheartedly agree with, given that it is similar to my own position.

Justice Amy Coney Barrett was nearly as tough on Thompson as Justices Sotomayor, Jackson, and Elena Kagan.

After several probing questions from the former Notre Dame law professor — with Thompson trying to draw out a distinction between procedural “hoops” outside of the legislature that he was saying were OK as opposed to substantive moves (like state courts tossing out redistricting maps) that he said are not — Barrett noted how he was “leaning pretty hard on the ‘lack of judicially manageable standards’ for things like [the] ‘free and fair elections’” clauses that state courts have interpreted in their state constitutions. Then, highlighting the confusing points of his own argument, she asked, “[W]hy should we take solace in a substance/procedure definition as a more manageable line?”

Chief Justice Roberts and Justice Brett Kavanaugh, too, expressed skepticism with the outer reaches of Thompson’s claim. Justice Clarence Thomas asked some questions signaling that he was — at least potentially — open to an off-ramp as well. Even Justice Sam Alito wasn’t quite his usual “I’m certain and I’m going to let you know” self, asking some pointed questions to both Thompson and the trio of lawyers opposing the “independent state legislature” scheme.

It was Kagan, however, who most clearly boiled the arguments down to why the case has raised such concerns that the court had even agreed to hear it:

I’d like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences.

It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that's a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.

So, in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.

That, Kagan said, is particularly distressing now because “you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”

Then there was Gorsuch.

Gorsuch has been on the court now for more than 5 years appeared ready and willing on Wednesday to make his mark in a significant case — even where that mark might be representing what began looking like a smaller and smaller minority position as the arguments went on.

His questions were basically the only sympathetic questions that Thompson got. At one point, the justice literally just provided Thompson with a list of examples that he thinks help Thompson’s argument, as Thompson responded “Absolutely, your honor,” “Yes, your honor, exactly right,” and so on.

On the other hand, Gorsuch had, almost universally, the most aggressive questions for Neal Katyal and Don Verrilli — arguing for the private and North Carolina state officials in opposition, respectively — and U.S. Solicitor General Elizabeth Prelogar, arguing for the United States. That’s fine, such as it is, but, in so doing, he definitely went further than necessary at points — like when he spent several minutes trying to get Katyal to “defend” a state trying to constitutionalize the racist “three-fifths compromise” in its state constitution prior to the Civil War.

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Regardless of the difficulties Thompson faced in advocating for his extreme position and despite the fact that Gorsuch was pretty much alone trying to help him, this isn’t necessarily an up-or-down case.

Even if the “independent state legislature” scheme doesn’t have majority support, there is another possible resolution of the case that some of the conservatives might be open to considering. It — as unbelievable as it is — comes from former Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore. Yes. Really.

It, essentially, would allow for limited U.S. Supreme Court review of state supreme court decisions about state election laws on state law grounds under certain circumstances, but it would not cut out state supreme courts like Thompson and the “independent state legislature” scheme would like to see happen.

I could go further, but UCLA law professor Rick Hasen is the true expert here and if you want to read his thoughts on the ins and out of the “middle ground position,” as Rick put it, check it out.