Wednesday, June 28, 2023

The Supreme Court Rejects the Independent State Legislature Theory of John Eastman and the Claremont Institute

In October, I wrote about the Independent State Legislature Theory that was part of the plot devised by John Eastman and the Claremont Institute to overturn the Constitution for Trump.  Yesterday, the Supreme Court issued its decision in Moore v. Harper rejecting that theory, in a 6 to 3 decision, with the majority of 6 composed of 3 liberals (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) and 3 conservatives (John Roberts, Brett Kavanaugh, and Amy Coney Barrett). Roberts wrote the majority opinion.  The one justice who is most under the influence of the Claremont Institute--Clarence Thomas--wrote the dissenting opinion, with the concurrence of Neil Gorsuch and the partial concurrence of Samuel Alito.  The New York Times has a good article on this case.  

This is one of the most important decisions the Court has ever made, because it denies Trump Republicans the opportunity to have state legislatures overturn federal elections, such as the presidential elections in 2020 and 2024.

This also shows that three of the six conservative Republican justices on the Supreme Court are willing to uphold the Constitution against the attacks of the Trump Republicans.  Two of those three are even Trump appointees (Kavanaugh and Barrett).    This adds to the long line of cases in which conservative Republican judges have shown impartial judgment in upholding the rule of law against Trump and the Trump Republicans.

Many observers of the Supreme Court had expected that the six Republican justices would vote in favor of the Independent State Legislature Theory.  But in one of his comments on my previous post, Roger Sweeny predicted that "no more than three justices will say anything nice" about that theory.  And, indeed, there were only three dissenters in this case.

The Independent State Legislature Theory (ISL) is based on an unusual interpretation of two clauses in the Constitution.  Article I, Section 4, clause 1 reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  Article II, Section 1, clause 2 reads: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  

Proponents of ISL say that these provisions give the "Legislature" of each State absolute power over Federal elections to Congress and the Presidency, a power that is so absolute that it cannot be limited by anything in state law or even in the state constitution.  Consequently, Republican-controlled state legislatures in 2020 had the power to overturn Biden's popular vote win in their States by appointing Trump electors to the Electoral College.

Another consequence of the ISL is that a state legislature has absolute power to engage in partisan gerrymandering in redistricting its congressional districts free from any limits by state constitutional law.  So, for example, in North Carolina, the Republican-controlled legislature drafted new congressional district maps in 2021 that gave an advantage to the Republican Party in ten seats and to the Democrats in four, even though the electorate tends to be evenly divided between Republicans and Democrats.  Multiple lawsuits were filed against the Republican leaders of the North Carolina legislature claiming that the maps were so partisan gerrymandered as to violate the state constitution.  In Harper v. Hall, the North Carolina Supreme Court held that the maps were indeed unconstitutional.  A special master team of outside experts was assigned to create a new map, which was accepted by a state court.  With this new map, the election in 2022 resulted in a 14-member congressional delegation evenly divided between Republicans and Democrats.

The Republican leaders of the legislature appealed the case to the U.S. Supreme Court, arguing that under the ISL theory, the North Carolina legislature has absolute power over congressional districting that cannot be constrained by the state constitution.  In Moore v. Harper, the Court has now rejected this argument.

This case became complicated when Republican judges took control of the North Carolina Supreme Court in the 2022 elections.  After the elections, Republicans controlled the Court by a 5-to-2 margin.  The North Carolina Republican legislators saw this as giving them a chance to overturn the decision in Harper v. Hall.  But according to North Carolina law, a petition for rehearing must be brought within 15 days of a court's judgment, and that time had long since passed.  To get around this, the Republican legislators argued that while they could not ask the Court to overturn the judgment in the Harper case, they could ask the Court to overturn the reasoning in the Harper case.  They said that the new Republican-controlled Court could rule that the previous Court was wrong in saying that partisan gerrymandering claims were justiciable under the State's Constitution, but this would not negate the force of the Court's order in Harper striking down the 2021 gerrymandered maps.  But then once they got this decision from the North Carolina Supreme Court, they were confident that the conservative majority on the U.S. Supreme Court would later overturn the original Harper judgment, which would restore the 2021 gerrymandered map.

With the new decision from the North Carolina Supreme Court apparently overruling Harper, it appeared that the case before the U.S. Supreme Court was moot, and if so, the U.S. Supreme Court would not have jurisdiction over this case.  But then the North Carolina Republican legislators argued that this was not moot, because they were still asking the Supreme Court to overturn the judgment in the Harper case, which would restore the gerrymandered map and affirm the ISL Theory.  

They persuaded the majority of the Court to accept this--that the Court did have jurisdiction over this case.  But now we can see that the Republican legislators committed a blunder, because those three conservative justices in the majority failed to accept the ISL Theory.  

When it became clear that three conservative justices were leaning towards rejecting the ISL Theory, Thomas, Gorsuch, and Alito argued that the case in Moore v. Harper was moot, and therefore the Court should have refused to render any judgment.  That's the argument of Thomas's dissenting opinion.

This is a stunning defeat for Eastman/Claremont conservative Republicans who were foolishly confident that the conservative majority on the Supreme Court would affirm the ISL Theory.


Anonymous said...

“Part of the plot devised by John Eastman and the Claremont Institute to overturn the Constitution for Trump.” John Eastman acted independently and outside of Claremont. This statement is wrong.

Larry Arnhart said...

John Eastman is the Director of the Claremont Institute's Center for Constitutional Jurisprudence, which officially sponsored his amicus curiae brief in Moore v. Harper.

Larry Arnhart said...

I should acknowledge that the Claremont Review of Books published Joseph Bessette's excellent critique of Eastman's memoranda for overturning the 2020 presidential election. I wrote about that in a previous post (December 1, 2021).