Before last month’s midterm election, progressives—and centrists, and socialists, and anyone, really, who thought that it was a bad idea to put election deniers in charge of state elections—braced for a red wave. When it didn’t hit, many of those people, for a moment, felt something like relief. And yet, for anyone inclined to commemorate the dodging of one bullet by scanning the horizon for the next, there was still plenty of cause for concern. If the optimistic view was that the electorate had rebuked the MAGA agenda and saved democracy, a take offered by the political scientists Lynn Vavreck, John Sides, and Chris Tausanovitch was more sobering: voters’ identities have become so “calcified” that, no matter what happens (inflation, a global pandemic, an impeachment or two), party loyalists will still show up to vote for their side, or against the other. This is obviously not an ideal way to run a democracy. And that’s setting aside the most glaring reason for Democrats to worry: even if they could win a lasting majority and pass robust legislation, those achievements could be unwound by an increasingly emboldened and reactionary Supreme Court.
The Court has had its relatively expansive eras, but it has not been a reliable engine of progress. Last year, in the Harvard Law Review, the law professor Nikolas Bowie called the Supreme Court “the ultimate source of antidemocracy in the United States”—and he was writing before the late-June bout of extraordinary (and extraordinarily unpopular) decisions, including the overturning of Roe v. Wade. This term, the Court seems prepared to curtail gay rights, to prevent President Biden from forgiving student debt, and to reverse decades of precedent regarding affirmative action. But the most ominous cases may be those concerning the mechanisms of democracy itself: how elections should be run and who should resolve the inevitable disputes that arise.
In October, the Court heard Merrill v. Milligan, a case about redistricting in Alabama. More than a quarter of Alabama’s residents are Black, but the state legislature had created a gerrymandered map with just one majority-Black congressional district, out of seven. The challengers argued that this violated the Voting Rights Act. During oral argument, Alabama’s attorney contended that the state could create districts only in a “race-neutral” manner; to take race into account, he said, would violate the Fourteenth Amendment. Justice Ketanji Brown Jackson, in her second day on the bench, responded with a pointed history lesson, explaining to him—and, by extension, to her six colleagues not named Kagan or Sotomayor—why a race-neutral reading of the Fourteenth Amendment got it precisely backward. “I understood that we looked at the history and traditions of the Constitution—at what the Framers and the Founders thought about,” she said. “The Framers themselves adopted the Equal Protection Clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.” Her conservative colleagues didn’t successfully refute her position; instead, they mostly ignored it.
Justice Jackson’s allusion to “history and traditions” may have been a dig at Justice Samuel Alito, who, in his majority opinion in Dobbs v. Jackson Women’s Health Organization, wrote that “a right to abortion is not deeply rooted in the nation’s history and traditions.” More broadly, it was a challenge to fair-weather originalists: you can’t purport to care about the original intentions of the Framers only when those intentions happen to align with yours. Except that, in fact, you can. As Alito and his allies have demonstrated, you can do whatever you want as long as you have the votes, and all the public can do is complain.
The final oral argument of the year took place last Wednesday, in Moore v. Harper, a North Carolina redistricting case. The law professor Rick Hasen has called it “the eight-hundred-pound gorilla” of election law; the conservative former judge J. Michael Luttig referred to it as “the gravest threat to American democracy today.” The case turns on what is called the independent state-legislature theory, first found, in its contemporary form, in Chief Justice William Rehnquist’s concurrence in Bush v. Gore, which held that, according to the Constitution, the Court was bound to side with the Florida state legislature (which meant favoring Bush) and against the Florida state court (which meant favoring Gore). There’s a lot to say about I.S.L.T.—the Justices spent nearly three hours discussing it, twice as much time as allocated—but, in its strongest form, it’s so doctrinally flimsy that it may not deserve to be called a theory at all.
The basic notion is that, because the Elections Clause of the Constitution gives state legislatures the power to administer federal elections, decisions about those elections—whether districts can be egregiously gerrymandered, whether voters need I.D., whether they can vote early or by mail, and so on—can be made by the legislatures alone, unconstrained by state constitutions and unreviewable by state courts. (An even more nightmarish version of the theory could extend a similar logic to the Electors Clause, opening up the possibility that rogue state legislatures could put forward alternate slates of Presidential electors, as some tried to do in 2020.) At oral argument, Justice Jackson again tried to show that that’s not how any of this works. “In order for us to have a thing called the legislature, we have to look at the state constitution,” she said. Alito, for his part, mocked the respondents for citing the English Bill of Rights (more selective originalism), and then, according to Slate’s Mark Joseph Stern, resorted to “rhythmically thumping the bench, which he tends to do when he tries and fails to pin down counsel.”
It would be the height of fair-weather originalism, not to mention fair-weather federalism, for the conservatives on the Court to prevent state courts from engaging in judicial review. But at least four Justices have already taken I.S.L.T. seriously enough to grant cert in the case; they would need only to persuade a fifth. Surprisingly, Justices Brett Kavanaugh and Amy Coney Barrett, in their questions, seemed skeptical of some aspects of the theory, if not ready to abandon it altogether. If the decision is muddled, or narrow—or if, perhaps, there is no majority opinion—concerned citizens would be forgiven for again feeling a measure of relief. When democracy dodges a bullet, this merits celebration. At some point, though, it would also make sense to do something about all the loaded guns lying around, waiting for someone to fire them. ♦
