Wednesday's nonsense "independent state legislature" case at the Supreme Court

Also: The consequences of the wedding website case. And: Death penalty difficulties.

On Wednesday, the Supreme Court will be hearing its arguments in a case that isn’t really a case but for the extremist vapors that willed the “independent state legislature” scheme into existence.

I’ll have a live-tweet thread of the arguments in Moore v. Harper, beginning at 10 a.m. ET Wednesday, as I do, but I’m also going to open up a chat thread here to talk about any big sticking points that come up. So, tune in by making sure you’ve subscribed to Law Dork and downloaded the Substack app on iOS or Android before arguments.¹

The case is, simply put, a no-brainer. The argument, such as it is, is that because the Constitution says that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” that means state courts can’t hear cases challenging those rules.

This is nonsense.

State legislatures aren’t a part of the natural world. You can’t go out into the woods and find a state legislature in the wild. The framers of the Constitution knew this. They knew that any state legislature was subject to constraints under that state’s own constitution and would be limited accordingly. A state legislature, simply put, does not exist outside of that state constitution!

This isn’t a Chris Geidner thing. J. Michael Luttig, a conservative retired appeals court judge, wrote earlier this year that there is absolutely nothing to support the theory (such as it is). As he put it:

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

But, on Wednesday, the court has schedule 90 minutes of arguments in the case — which almost certainly will last more than two hours and go near three hours or longer.

While the case itself shouldn’t go anywhere, it could with this extremist court. If it did, the conservative majority would be cutting off one of the few remaining grounds for people to challenge mischief by legislatures in redistricting and other election-related actions. It would cut off the only way left to challenge partisan gerrymanders, since the Supreme Court has already eliminated the ability to bring those claims at the federal level.

For a listen on the case before Wednesday’s arguments, check out Amy Howe and UCLA Law election law professor Rick Hasen’s chat about what he’s been calling “the 800-pound gorilla” on SCOTUStalk now.

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ALREADY THIS WEEK: On Monday, the Supreme Court heard arguments in one of the other big cases of the term, 303 Creative LLC v. Elenis, the “wedding websites” case, as you probably heard.

This case, like Moore v. Harper, isn’t really a case either — but for different reasons. Here, the plaintiff, Lorie Smith, hasn’t started making wedding sites, let alone denied a same-sex couple her wedding website services, let alone faced legal consequences from Colorado because of it. And yet, here we are.

This isn’t necessarily bad, in and of itself. Pre-enforcement challenges aren’t a bad thing if the plaintiff can show a real enforcement risk. But, the way this Supreme Court majority treats pre-enforcement challenges — remember Texas’s S.B. 8 vigilante abortion bill — raises questions about whether the scales of justice are unencumbered by the weight of the conservatives’ predisposed opinions.

At MSNBC, I wrote about the implications of the case, noting:

When the [liberal justices] were asking about “line-drawing” and “hypotheticals,” they were really talking about consequences.

The case is being treated in the press as “a new clash between faith and gay rights,” as The New York Times put it over the weekend, but that’s only what Smith’s lawyers want people to believe. A ruling for Smith is also a ruling that weakens Colorado’s public accommodations law more broadly and, potentially, all manner of nondiscrimination laws.

As Sotomayor put it, “Where’s the line?”

Law Dork also made its chyron debut, when I talked about the case last night on CNN Tonight with Laura Coates hosting in prime time.

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THE DEATH PENALTY’S LIMITS: While a handful of states have been planning or attempting to carry out executions — and some, like Missouri, have done so — a look-ahead shows the difficulty that states have in actually carrying out executions.

In Oklahoma, John Hanson — who, recall, the state had sought to execute on Dec. 15 — remains in federal custody and the next hearing in the state’s lawsuit asking a federal court to order that the federal government turn over Hanson to Oklahoma officials so they can kill him is not scheduled to take place until a week later, on Dec. 22. Simply put, the execution isn’t going forward on Dec. 15.

In Idaho, the Department of Corrections director told a court that the other execution scheduled for Dec. 15 — that of Gerald Pizzuto Jr. — won’t be going forward either. In that instance, the director said, it’s because officials there haven’t been able to obtain the necessary lethal injection chemicals.

The only other execution remaining scheduled for 2022 is that of Thomas Edwin Loden Jr. In Loden’s case, Mississippi has scheduled his execution for Dec. 14, but there is ongoing federal litigation and a pending motion for a stay of execution. U.S. District Judge Henry Wingate has said he will rule on that motion today, with further litigation likely.

Thus far this year, five states have carried out a total of 17 executions in the U.S.

1. If you have neither, don’t fret. I’ll certainly follow up with coverage after the arguments.