Whereof One Can Speak 🇺🇦

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A Footnote to “How To Fix a Lawless Supreme Court”

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Two of the three law professors I quoted in this earlier post believe the Constitution wouldn’t permit legislators to overrule a state’s voters and select their own slate of electors for the Electoral College, after the voters had already voted for president (or possibly without allowing the voters to vote at all). Leah Litman and Katherine Shaw briefly but forcefully argue this in a law journal article, “Textualism, Judicial Supremacy and the Independent State Legislature Theory” [p. 4].

The Independent State Legislature Theory (ISLT) is a fanciful idea being pushed by some Republicans that would give state legislatures total control over their state’s Electoral College votes. Even some members of the Supreme Court seem to like the idea, since it would allow gerrymandered legislatures in states like Wisconsin and North Carolina to help elect Republican presidents, regardless of who won the presidential election in their state. This is what Litman and Shaw say about it:

We do not offer a direct critique of a potential scenario in which a state legislature, relying on Article II [of the Constitution], seeks to assign to itself the power to directly appoint presidential electors, including after voters have cast their votes. That would, without doubt, represent one of the most high-stakes, antidemocratic, and lawless contexts in which a version—to be sure, a fringe version—of the ISLT might be deployed.

But, as far as we understand the rationales for such a move—which was reportedly considered and urged by a number of T____ advisors and supporters, including Ginni Thomas, in the aftermath of the 2020 election—they do not entail claims that state entities have misinterpreted state laws. They rest instead on the distinct claim that state legislatures’ authority to prescribe the method of appointing presidential electors is plenary and unconstrained by basic notions of due process, democracy, or constitutional protections of the franchise. As profoundly misguided as such a claim is, debunking it is not our project here. Our focus is the independent state legislature theory, not its warped variant, the anti-democratic state legislature theory—which might be better described as the state-legislature-as-the-end-of-democracy theory.

I hope the Supreme Court Six agree with the professors (and the rest of the sane legal community) when the justices rule on Moore v. Harper in their next term. Given their recent track record, there’s no guarantee that they will.

How To Fix a Lawless Supreme Court

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The Judiciary Act of 1869 “provided that the Supreme Court of the United States would consist of the chief justice of the United States and eight associate justices [and] established separate judgeships for the U.S. circuit courts”.

There were nine circuit or appellate courts in 1869. The US population was around 38 million. Now there are thirteen circuits. The population is 338 million. We’ve also got a lot more laws and lawyers. A simple act of Congress, signed into law by the president, could add four justices to the Supreme Court, one for each circuit. Given the Court’s additional workload, simple arithmetic and common sense support adding four Supreme Court justices.

An added benefit would be that the president could nominate and the Senate could approve four justices who respect the Constitution and legal precedents; who don’t want to promote Christianity, patriarchy, white supremacy, plutocracy and the gun culture; and who don’t want to give corporations license to destroy the environment. In other words, seven honorable justices vs. the six dishonorable ones we have now.

I think that’s the best way to fix a lawless Supreme Court, although there are other possibilities (all, of course, assuming a Democratic House of Representatives and at least fifty Democratic senators go along).

Paul Waldman explains how states like California and New York are already working on new licensing requirements and the wide-ranging designation of what the Republican majority called “sensitive places” where guns can be prohibited:

[When you say] “the Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant”, the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose”….You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

And just like you can’t drive your car on sidewalks or in grocery stores, you can’t take your gun anywhere you want. No doubt the Supreme Court Six will rule in favor of insanity, but, as Mr. Waldman says, some laws will survive, the legal process could take years and, meanwhile, lives will be saved.

Jamelle Bouie has written two columns on the same subject this week. From his second:

[Article 3, section 2 of] the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.” [But] the court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction.… It can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

He then discusses the “Guarantee Clause” (Article 4, section 4″, which says that “the United States shall guarantee to every State in this Union a Republican Form of Government”. A republic is generally considered to be a state in which supreme power is held by the people and their elected representatives, not by a monarch. Interestingly, courts have been reluctant to specify exactly what a republican form of government is, leaving that decision to Congress. Mr. Bouie continues:

[But we do have] Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, … and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

 As Mr. Bouie says in his first column:

The Supreme Court does not exist above the constitutional system… In the face of a reckless, reactionary and power-hungry court, Congress has options….The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

It’s almost impossible to imagine the 50 Democrats in today’s Senate all having the courage and understanding to seize the moment and reform the Supreme Court (one of them who’s against reforming the filibuster is rumored to have killed a proposed surtax on incomes over 10 million dollars, I suppose because of her support for the working class).

But it looks like a terrible crisis may be approaching. Three law professors write in today’s Washington Post about a case the Court has agreed to hear later this year, Moore v. Harper:

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise. This invitation is based on an unsupportable legal claim known as the independent state legislature theory (ISLT). The theory would disable state courts from protecting voting rights in federal elections.

In theory (and given the recklessness of the Republican majority), the Court might rule that state legislatures have absolute authority to determine how their states vote for president. State legislators could ignore the voters and appoint whoever they wanted to represent their state in the Electoral College.

The outcome in 2024 is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets [the rest]. Biden is going to the White House for another four years.

Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis.

We then hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote: North Carolina, Wisconsin, Michigan, Pennsylvania and Arizona.

CNN announces that DeSantis has won the election…. 

What Is To Be Done?

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That’s the title of an 1863 novel by Nikolai Chernyshevsky. It’s about a woman who escapes the control of her family and finds economic independence. (Lenin borrowed the title for a pamphlet about a few “burning questions” in 1902.)

It’s the phrase that came to mind in reaction to the Supreme Court Six’s effort to make America fit their reactionary politics.

Here are two aspects of the situation that make it remarkable (there are others).

One is that the six reactionary Republicans are trying to justify their bizarre rulings by referring to made-up legal theories. As right-wing judges have done for years, they cite “originalism” and “textualism”, the ideas that the Court should pay close attention to the Constitution’s precise text and the specific intentions of its authors. It just so happens that the text and the perceived intentions always support whatever justices like Alito and Thomas prefer to do. Justice Kagan pointed this out in her dissent to the EPA case:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

The “major questions doctrine” is a classic conservative invention. Paul Waldman explains that one:

[It] holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.

Another right-wing invention concerns “independent” state legislatures. Mr. Waldman continues:

Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.

Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.

Why are conservatives attracted to this idea? … The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.

In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — … the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules [no matter what the state’s constitution or courts say], they can [help] Republicans win.

The Supreme Court Six’s decision-making is all about the Republican agenda. It’s all about power.

So how did we get here? That brings up another remarkable aspect of our situation. Trump toady and US senator Lindsey Graham is outraged that Senate Democrats might want to do something about this renegade Court (like changing the filibuster rule, which Republicans did in 2017 in order to easily install Supreme Court justices of their choosing). Graham says it took 50 years for Republicans to skew the Court and now Democrats want to clean up the mess in a matter of weeks.

Josh Marshall responded to Graham:

This is true. It took them 50 years. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Democratic appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections [over 50 years]. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working, they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase Theodore Roosevelt. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system.

… What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, i.e. majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it….

Having captured the courts through unprecedented political means, Republicans like Graham now want to dive headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats or exploit the minoritarian quirks of the Constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote. Whether Democrats will be able to pull this off will come down to the results of the November election.

Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

But what can be done? I want to blog about that next time.

He Tried to Pull a Mussolini

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Will Bunch of The Philadelphia Inquirer asks what would have happened if the Cancer on America had made it to the Capitol on January 6th and what’s going to happen next:

The nation’s right wing — swelled by disgruntled military veterans and those with a penchant for violence — had grown increasingly restless that fall, with occasional street clashes between these reactionaries and anti-fascists on the left. Finally, the leader of the right bloc — a big man who strutted on stage, sometimes buffoonishly — massed his followers and urged them to march on the capital and fight for their country, even though in the end he didn’t march with them.

Instead, Benito Mussolini would get in a car and drive to Rome in October 1922, where he again met up with the throng of as many as 60,000 who’d marched there after the future dictator’s speech to them in Naples. This was the-now notorious March on Rome, and the intimidation of Italy’s ruling elites by this large, angry mob and its “strongman” leader worked beyond anyone’s wildest dream. By month’s end, King Victor Emmanuel III had ceded all political power to Mussolini and the fascists, who would not relinquish it for two decades.

Just four months before the 100th anniversary of what is now seen as the lift-off of modern fascism, we have seen in dramatic fashion how the concept and underlying terror tactics of Mussolini’s March on Rome never went away, but lived on to be modernized by a reality-TV star who’d faked his way into the White House and was determined to stay there.

Tuesday’s riveting testimony before the House Jan. 6 Committee by former D___ Trump White House insider Cassidy Hutchinson … revealed just how close T____ came to a true Mussolini moment: His own plan to “march” on the U.S. Capitol.

The now 26-year-old Hutchinson — deputy to T____’s chief of staff Mark Meadows, embedded in the then-president’s inner circle on Jan. 6, 2021 — testified under oath that T____ knew that his supporters were heavily armed when he exhorted them to march from a rally near the White House to the Capitol, where the ceremony to certify President Biden’s win was beginning.

… Hutchison confirmed prior suggestions that the 45th president had demanded to go to the Capitol, where he would have stood among Proud Boys and others launching a violent assault on democracy.

“I’m the effing president — take me up to the Capitol right now,” T____ is said to have bellowed at the head of his security detail, as Hutchinson said was related to her that afternoon by Secret Service-connected deputy chief of staff Tony Ornato in the presence of that security head, Robert Engle. But the president was overruled by aides who insisted his security could not be guaranteed at or near the wild and increasingly violent melee.

To experts on authoritarianism — who’ve been some of the most reliable tour guides during the long, strange trip of America’s last seven years — T___’s scheme was an effort to create a legend, reassert his leadership, and reverse his embarrassment over losing the election to Biden by 7 million votes.

As Hutchinson was testifying, Ruth Ben-Ghiat, the New York University historian who’d specialized in Mussolini and wrote the book Strongmen, tweeted that “of course T____ was trying to get to the Capitol. A coup leader must be there to bless the new order birthed by violence and be acclaimed as savior by the crowd.”

I reached out to Ben-Ghiat to follow up on this. She told me that Jan. 6 was essentially “a cult leader rescue operation,” in which T____ “prepped his followers for months to be outraged at their hero being robbed of what was rightfully his, and then summoned them to the Capitol to save America by saving him.” She had written recently that the moment T____ hoped to achieve — restoring his movement’s warped sense of justice and order — is what is known as “the pronunciamiento.”

June 28, 2022, was a devastating day for T____ … Over just a couple of hours, Hutchinson laid out a compelling case that he and his closest aides knew the potential for violence on Jan. 6 and knew that morning of dangerous weapons, yet still sought mayhem at the Capitol when the votes were to be counted. She showed how T____ not only had no real interest in calling off the insurrectionists but supported their chants to hang Mike Pence. Most aides, she testified, knew what they were doing was against the law, either from their in-house legal advice or the pathetic last-minute begging for pardons….

But … what if the Secret Service and other aides had indeed kowtowed to “the (expletive deleted) president” and driven him to the Capitol? How might that have changed the course of the attempted and ultimately failed coup that was underway?

… T____’s physical presence could have intensified the violence [and] prolonged it…. If that had happened, it might have been unsafe for Vice President Mike Pence and Congress to resume Biden’s certification. T____ might have declared the national emergency that the worst of his advisors had been urging.

Simply put, Hutchinson’s testimony showed how close … the American Experiment came to bursting into flames.

Which is why “what next?” is so important. Just how, exactly, will the slow-moving Justice Department of Attorney General Merrick Garland respond to the increasingly mapped-out-for-them case that T____, his lawyers Rudy Giuliani and John Eastman, and others took part in a criminal conspiracy in fomenting the insurrection?

The Magic 8 Ball is very cloudy…. There are understandable reasons to fear indicting T____, which would surely heighten the partisan divisions in America…  But recent events, from political violence to a rogue Supreme Court that was molded by T____, suggest that unrest is happening, no matter what. The real pressure is not to keep a false calm but to do the right thing, with the future of America on the line. D____ T____ [and his co-conspirators] must be brought to justice.

Any Republican President Would Have Been Dangerous

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Probably not as dangerous as T____, because that representative of that party was eager to become a dictator. But anyone who was bad enough to win the Republican nomination would have followed Federalist Society recommendations and chosen Supreme Court ideologues just as dangerous as the ones T____ picked. Consider what Alito, Thomas and sometimes Roberts have been able to accomplish in company with Gorsuch, Kavanaugh and Coney Barrett.

They allowed states to force pregnant women to give birth, while at the same time denying that Americans have a right to privacy, thus setting the stage to overturn other precedents, including the right to use contraception and the right to marry who we want.

They decided states don’t have the right to regulate guns, making it easier for gun fetishists to stroll around our neighborhoods with dangerous weapons more easily than residents of Wild West towns like Deadwood and Tombstone could do 150 years ago.

They weakened Miranda rights, decided tribal lands aren’t truly sovereign, allowed public school teachers to lead their students in prayer and decreed that the Occupational Safety and Health Administration couldn’t protect workers from COVID-19.

This morning they announced that the Environmental Protection Agency is limited in its ability to follow the Clean Air Act and regulate greenhouse gases, which will probably lead to other Executive Branch agencies not being able to do their jobs.

They’ve allowed Republican legislatures to devise congressional districts that will insure Republicans are elected and have decided to hear a case later this year that may give state legislatures absolute control over elections, to the point where legislators, not voters, can decide won an election, ignoring state constitutions that allow judges to review their decisions.

This is what we get for electing Republicans to high office. Any Republican president would have given us a Supreme Court majority just as bad.

Today, President Biden said he supports changing the Senate’s filibuster rule to reinstate the Roe v. Wade decision that prohibited forced birth. Senators don’t need his permission to fix or abandon the filibuster. They don’t need his permission to protect voting rights and exercise reasonable control over a renegade Supreme Court.

If Democrats fail to add senators or lose the House of Representatives in the next election, the Court will remain free to remake America. Those are the stakes in November.