Justice Ketanji Brown Jackson Asks Simplest, Most Damning Question As Supreme Court Entertains Canceling Democratic Elections

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(Photo by Chip Somodevilla/Getty Images)

Going into this morning’s oral argument on Moore v. Harper, it didn’t really seem like free and fair democratic elections had much of a future in this country. If one were so inclined, the smart money said the Supreme Court would functionally cancel democratic elections, or to be more technical, “cancel any check on gerrymandered state legislatures from erasing elections if they wanted to.” That might still happen, but if you took the over on the American Republic, things are looking up.

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And across hours of oral argument, Justice Jackson asked the most succinct and ultimately damning question that might save the day. Or at least minimize the impact.

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As a refresher, Moore v. Harper is the hook for the Court to enshrine the “independent state legislature theory,” a sort of conservative fever dream contending that when the United States Constitution vests state legislatures with power over elections, it elevates them above their own state constitutions and, consequently, divorces the state legislature from any checks or balances involving the executive or judiciary. When the Constitution says that states “by the Legislature thereof” set the rules for electing a state’s congressional delegation and name presidential Electors “as the Legislature thereof may direct,” it means state representatives and state senators are not subject to state oversight. 

Here, the GOP legislature proposed a severe partisan gerrymander over the objection of the state supreme court interpreting the state constitution’s voter protections — the GOP wants to circumvent that. Because, across the country, state legislatures are largely controlled by Republicans even in states where Republicans cannot win statewide elections, this is of particular interest to the conservative legal movement. This case was about a gerrymander, but it’s not much of a leap to a state legislature naming Electors over the objection of a closely contested (or, hell, not closely contested) election.

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As the argument unfolded, three distinct camps emerged, with Jackson, Kagan, and Sotomayor opposed to the whole goofy theory; Alito, Gorsuch, and Thomas thrilling at the prospect of authoritarian rule; and the Chief, Barrett, and Kavanaugh wishing there was some way to let Republicans gerrymander at will without turning North Carolina elections into North Korean elections.

Neal Katyal went right at the conservatives with receipts — straight up calling his shot, announcing that he’d been “waiting for this case” so he could unload his can of originalism on Justice Thomas — quoting back their own opinions from every time the shoe was on the other foot, prompting a series of blubbering exchanges from the frustrated justices. His exchange with Gorsuch set the tone. The justice asked Katyal for “one example” of the Court employing Katyal’s theory. He cited a 19th century example. “*grumble* Put that aside!” He cited another. Gorsuch rants and raves trying to figure out why he hadn’t researched this point.

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Alito concocted a hypothetical about a rogue state supreme court that needed to be brought to heel. Yes… Samuel Alito raised the fear that a court might ignore law and precedent for political gain. You really can’t make this stuff up! Alito is having himself an all-timer week for unintentional comedy.

Regardless, Alito’s hypothetical was both irrelevant — everyone seemed on board with some very deferential standard for federal judicial review (Professor Rick Hasen suggests an arbitrary and capricious standard following Roe v. Alabama) — and missed the whole point. The Framers, of both the federal and various state constitutions, began from the premise that checks and balances are the antidote to rogue actors. The cure to the risk of a rogue judiciary is not to fully unshackle the legislature. Alito strained to deal with this and grew audibly incensed when he realized most of his colleagues weren’t buying it either.

Don Verrilli and Elizabeth Prelogar also took turns at battering the GOP theory, with the conservative justices growing quieter if no less strident as the event wore on.

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But amid all the twists and turns from Justice Kagan’s incisive questioning (not-too-far-off translation by Professor Leah Litman: “So this theory could end our democracy. Response?“) to Justice Gorsuch arguing that the independent legislature theory is how pre-Civil War Virginia was a bulwark against the 3/5ths clause (or some nonsense), Justice Jackson delivered the most devastating bodyblow (no transcript… so this may be inexact):

I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.

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Yes. She actually asked this question in different phrasings a few times, but it’s really the only question anyone needs to answer. If state constitutions create state legislatures then how can state legislatures violate state constitutions. It ceases to be a constitutionally ordained legislature at that point!

It’s a chicken and egg problem — except it’s more like which came first the chicken or my dinner tonight — with a single obvious answer. If the state constitution sets guardrails of voting rights and the proper deference required to courts and the executive, then the legislature can only work within that. The GOP argued that, because the word “Legislature” is in the U.S. Constitution it elevates state legislatures above the constraints of their own state laws for this purpose, but no one — original or otherwise — ever entertained that idea. Indeed, it would be absurd to think the Framers, at the time, intended to dictate to the states how their governments should function. “Legislature” is whatever the state chooses to create with all the checks and balances attendant to its own laws — just like it’s been for over 200 years.

At the top of Katyal’s argument he cited the two centuries of election law and declared that it would be “a whole lot of wrong” if “Legislature” meant what the GOP asked for as opposed to how Justice Jackson posed her question.

Occam’s Razor remains undefeated.

Make no mistake, Chief Justice Roberts is on record buying into a watered down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance. But whatever compromise the conservatives try to mold will remain haunted by Jackson’s straightforward question.

Which came first, the state constitution or the state legislature? It’s the constitution. It’s always going to be the constitution.

Earlier: Just An FYI, The Supreme Court Is Going To Cancel Democratic Elections Next Year

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Clarence Thomas, Courts, Don Verrilli, Election Law, Elena Kagan, Elizabeth Prelogar, Ketanji Brown Jackson, Moore v. Harper, Neal Katyal, Neil Gorsuch, Sam Alito, Supreme Court