Strict Scrutiny - Debunking the Independent State Legislature Fantasy

Episode Date: September 5, 2022

With guests Jamelle Bouie and Carolyn Shapiro, Kate and Leah analyze the fan fiction that is the Independent State Legislature "Theory" (emphasis on the quotation marks), which threatens to take the main stage in an upcoming case about the power of state legislatures to set rules for federal elections.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman. And I'm Kate Shaw. And today we are bringing you a very special summer episode about an idea known

as the independent state legislature theory. This is an idea that has moved with dizzying speed from the outer fringes of mainstream legal thought to something that has a real possibility of being embraced in some form by a majority of this Supreme Court. You may have heard this arcane sounding phrase in some of the litigation around the 2020 election or in recent discussions at the upcoming Supreme Court term. And you may have told yourself, I'm not going to worry about getting up to speed on this right now. There's just too much insane news coming out of the court, and so I cannot. We get it. We really do. But I'm sorry.

Now is indeed the time. It is important to understand this. I don't even want to call it a theory, frankly. I don't think it deserves that. To appreciate how baseless it is and to understand what its embrace could mean. So today we are going to break down the independent state legislature theory. appreciate how baseless it is and to understand what its embrace could mean. So today we are going to break down the independent state legislature theory. And to do that, we are joined by two fantastic guests.

First, we have Jamel Bowie, who's a columnist for The New York Times, where he is one of the most important writers and thinkers out there. He focuses on history and politics and democratic dysfunction and decline and collapse. And he also hosts the Unclear and Present Danger podcast and has one of the best podcasting setups I feel like we have seen with any guests that we've had on the show. So Jamel, we are enormous fans. Thank you so much for taking the time

to come on Strict Scrutiny. Thank you so much for having me. It's a real honor and pleasure. We are also joined by Carolyn Shapiro, a professor at Chicago Kent College of Law, where she is also the founder and co-director of the Institute on the Supreme Court of the United States. We particularly wanted to have Carolyn on because she's the author of an important new

article forthcoming in the University of Chicago Law Review that takes the independent state legislature, air quote, theory head on and does a masterful job of making crystal clear just how unsupported by history or logic it is, basically that it is some Brodus, or as I like to say, Scrotus fanfic. So Carolyn, welcome to Strict Scrutiny. Thanks so much for being here. Thank you so much for having me. We should also mention that Leah and I actually have a paper that is narrower in scope, but we hope equally forceful in its attack on the theory as well. We may get into

that piece a bit later on in the episode. But maybe let's start by asking you, Carolyn, to just talk through the origins of this idea, beginning with Bush versus Gore in the year 2000. So as people may not remember this, but actually the Bush campaign went to the Supreme Court twice in 2000. So the second time was Bush versus Gore. And I will talk about that in a moment. But I just want to flag the first time, which was a case called Bush versus Palm Beach County Canvassing Board. And the issue there was whether the Florida Secretary of State, who people may remember

was Catherine Harris, also the chair of the George Bush campaign in Florida, would have to accept the results of recounts from different counties, even if they came in after what was arguably a statutory deadline. And the Florida Supreme Court said, well, we think the statute's ambiguous about the deadline. And look, our Constitution says that all political power is inherent in the people. And we have well-established precedent emphasizing that election law has to be interpreted to promote the will of the people. So in light of all that, we think that the secretary can't reject the recounts under the current circumstances of this case and set a new deadline. So the Bush campaign went to the Supreme

Court, U.S. Supreme Court, and said the Florida Supreme Court had violated the federal constitution because by changing this deadline, they had usurped the role of the state legislature, which under this federal constitution is the body that chooses how to appoint presidential electors. So the Supreme Court punted. They didn't actually take it on. They said, well, we can't actually really tell quite how much the Florida Supreme Court was just construing the statute and how much it was relying on the state constitution, which could be a problem. So we're going to send it back and let them tell us what they did. They never got the case back because what they got instead was Bush versus Gore, which your listeners undoubtedly know was decided on an a deadline in order to do that. And they said the statute allows us to do that.

Overall, the Supreme Court didn't reach that question. wrote in a concurrence with no citation whatsoever that the text of the election law itself and not just its interpretation by the courts of the states takes on independent significance when it comes to federal elections. And so he said he thought the court in Florida had gone too far. And that is where we found ourselves by the time of the 2020 election. So you took us right up to the 2020 election when we saw renewed interest in this theory. What form did that renewed interest take? Well, it came up in several different states in different ways, but I'll focus just on one as by way of example, which is Pennsylvania. There was this big fight about the mail-in ballots in

Pennsylvania. We were at the height of the pandemic. The post office was saying they weren't sure they'd be able to get the ballots returned in time. And so the Pennsylvania Supreme Court said, well, we think that under the circumstances of this particular election, there's a big risk that people's votes won't be counted if they send in their application at the last minute and then turn around and send in their ballot. It might not get there by election day, which was the deadline for receipt in Pennsylvania, through no fault of their own. And they said, we think that's a constitutional problem because we have a guarantee of free and equal elections in our state constitution. So the court extended the receipt by deadline, by three days, which is something, the kind of thing the court has done

before, the Pennsylvania court has done before when it faced with things like natural disasters it was not an unprecedented move. It's important to know that Pennsylvania like almost every state has unified elections so these ballots were both for federal office but also for state office. The Republican party went to the Supreme Court and said you have to stay this order because the court is going too far outside of its bounds. It's usurping the legislature's authority. And the Supreme Court denied that stay 4-4. It was before Justice Barrett was on the court. And in the end, the ballots, they were segregated, so they could be counted separately, but it didn't make any

difference in any federal election. And the court ended up not deciding that case. Let me ground this just for a moment in the Constitution. So basically, both the 2000 saga out of Florida and the events in Pennsylvania and similar events played out in other states, but Carolyn, you're talking about Pennsylvania, both of those cases involved an argument that state courts had basically violated the federal constitution when they interpreted state statutes in light of state constitutional guarantees of free elections and things of that nature. So what in the federal constitution might these state courts have even violated? Let's just quickly mention the two parts of the federal constitution that proponents of this so-called theory kind of ground their theory in. The one that was at issue in both 2000 and in 2020 was

a part of Article 2 called the Presidential Electors Clause, which basically says that each state shall appoint in the manner that the legislature may direct presidential electors. And then there's another constitutional provision, this one in Article 1, which basically says that state legislatures shall prescribe the times, places, and manners of holding elections for senators and representatives. So one provision for presidential electors, the other for congressional elections. federal constitution gives state legislatures this special power, maybe some sort of near absolute power to regulate federal elections. And state courts are basically disempowered from interpreting state statutes in light of state constitutions in ways that may facilitate the exercise of the franchise. So that is the basic background. I just want to restate that, right? The premise of this theory is it is unconstitutional. It violates the federal

constitution for state courts to either interpret state law or to enforce the state constitution. Somehow violates the federal constitution for state courts to enforce the state constitution. Again, just to get that out there. It sort of doesn't make any logical sense. Like it kind of posits a world where state legislatures pre-exist the formation of state constitutions and states. Like there's some sort of primordial institution, which is just like it's just nonsense. What's a little logic to get in the way of a good time at the court, Jamal. And the Supreme Court has actually said that when it comes to the way laws get made, the legislature does have to follow the state constitution. So when it makes a law about how to choose presidential electors or makes a law about regulating congressional elections, if there's a gubernatorial veto, there's a gubernatorial veto in the constitution. So that's been the law for well over a century, very clearly. Doesn't sound deeply rooted in history and tradition. Sorry, I'll let you continue, Kate.

Sorry. No, no, I just I want to invite Jamel to come in now. So you mentioned that there it feels like there's a logical problem with this idea that that legislatures are these free floating entities, not creatures of state constitutions, not constrained by the federal constitution. So that seems like one enormous threshold problem. But that's by no means the only problem with this theory, right? So do you want to just kind of talk generally from history, from constitutional structure, you know, more logic if you want, sort of about what is so wrong with this idea that the state legislature and only that entity gets something like plenary authority to regulate federal elections. I think the argument from sort of history is that it would, if this is true, right, if this is what the framers intended, if this is what the ratifiers thought they were doing

in 1788, then we would see some evidence of it because these things were discussed very vigorously. We would see some sort of indication that the idea amongst the drafters and the writers and the ratifiers was that state legislatures had this plenary authority to determine the conduct of elections. But what we know specifically is that the influence of state legislatures on elections was a real concern for the founders. That part of this structure, whatever you think of the structure of the American government, part of the reason why the Senate was the chamber they chose to have state legislatures appoint members and rejected that option for the House, rejected the option of state legislative appointment of the president, which was a thing that was discussed,

was out of the idea that state legislatures should not have that much authority over the entire political system, that they needed to be balanced against something else. And if you want to go back even further, the whole reason for the 1787 Philadelphia Convention was discontent with the conduct of state legislatures. When discussing either the structure of federal elections or the allocation of electoral votes in Article 2, it does not make sense to conclude that the intent of the framers or that the actual intent here was to empower state legislatures, because the structure of the Constitution is very much against empowering state legislatures and very much trying to constrain them within the context of the existing political order.

And for me, that's sort of like the foundation of it. Given what the Constitution is, it doesn't make any sense to conclude that that's what the role of state legislatures in terms of elections are. And then when you consider the other aspects of this, right, that the same clause that says that state legislatures have some leeway here also states that this is all subject to regulations as Congress may see fit is also another hint that what's happening here, it's closer to a delegation of power giving the constraints of the world in which they live and less than sort of statement about the total power and primacy of state legislatures. I'd also add that if this sort

of idea did not emerge in the 80 years between ratification and the end of the Civil War, when states were quite powerful and did have this outsized role in the constitutional order, then I don't just don't think it exists. Because lots of other things along these lines did emerge, right? Like interposition, John C. Calhoun's belief that the states could nullify federal legislation. This emerged during this period. And supporters of it, advocates for it, could ground their view in something that happened during the years of constitutional writing and ratification. But the total plenary power of state legislatures over all elections, such that they're unbound

by state constitutions, it just is not a thing that exists. And it's not just that people never raised this idea. It's that they never raised this idea at the same time that state courts were enforcing state constitutions, right, in the laws regarding federal elections. And also that state laws delegated a considerable amount of authority to state executive officials. So the legislature is worth the ones setting all of these rules independent of other state institutions. So we've mentioned, you know, Kate in my paper, Carolyn's paper. I also want to give a shout out to a forthcoming paper by Mark Kras, you know, that outlines how many other state institutions besides the state legislature were deeply involved

in the conduct of federal elections around the time of the founding. And still, as Jamel notes, no one said, well, Article 1 doesn't allow this. It just wasn't a thing. Right. And so I feel kind of exasperated whenever I talk about this because it's sort of like, I don't understand. I mean, clearly the whole, in my view, the theory, it's a post hoc justification for things people want to do. That's all it is. And so it doesn't need to make any logical or historical sense for its advocates because it's a tool for advancing a particular aim. In our case, a very specific aim, how can Donald Trump stay in office? That's it. But if we're going to take it seriously as a theory, it's exasperating to talk about because

there's just no, there are lots of wild and crazy ideas that have some grounding in American constitutional history and American political history. They might be wrong, right? They might be nonsense, but you can find something. But there's not really that for this. And that should be a clear, glaring, you know, signal, big flashing lights, like an Acme sign in a Looney Tunes cartoon, that this is very dumb. A technical legal term. Yes, yes. I'm not a lawyer, so I don't know your languages. That worked. In the early days of the country, after the Constitution was ratified, lots of state constitutions had provisions that directly regulated federal elections or regulated all elections.

I mean, it's not just that state courts were enforcing them. They were there. They were in the constitutions. People who argue in favor of this theory sometimes point to a tiny, tiny, tiny number of outlier moments, most of which happened starting in the 1860s, so long after the founding, where somebody said, well, maybe. But those are such outliers in the vast swath of history and practice and logic and the underlying structure of the Constitution that they really cannot bear the weight of this theory. This is what very smart people are concluding

as they look at this, you know, essentially without real exception, you know, but the idea is out there. There's clear interest in it from some of the justices. Legislatures are pressing this argument. And then at the end of June, the Supreme Court announces that it will hear a case that will give it the opportunity to fully consider whether to adopt for the first time some version of this independent state legislature, quote, theory. Now, there was a lot happening at the court in late June. So it's understandable if folks missed this, but let's kind of get into now the basic gist of this case, which is Moore v. Harper. adopts a congressional map that draws districts for congressional seats that heavily favors Republicans and would likely have resulted in an advantage for the Republican Party of 10 out of 14 congressional seats in an evenly divided state that has a Democratic governor. So some Democratic

groups and nonprofits challenged the map, and they argued that it violated some provisions in the state constitution guaranteeing, among other things, free and fair elections. The North Carolina Supreme Court held that this map was an unconstitutional partisan gerrymander under the state constitution, including its Bill of Rights, and could not be used. It called the map an egregious and intentional partisan gerrymander, and it ordered the lower court, the state trial court, to come up with a new map, which it did. So the Republican legislature then goes to the Supreme Court, asks it to step in. It initially asked the Supreme Court to reinstate the original gerrymandered map for a May primary election, which the court declined to do, but declined over dissents by Justice Alito, joined by Thomas and Gorsuch, and also with a separate writing by Justice Kavanaugh calling the matter came back to the court and the court in June agreed to hear the case. So the argument will likely be late this fall, though at the time that we are recording, we don't have an argument date yet. But what these state legislative officials are saying is, you know, what we've basically been walking through as the general kind of architecture of the argument, which is that the Constitution gives the power to regulate. These are congressional elections, not the presidential elector selection. So this is the Article I, not the Article II, part of the independent state

legislature theory. But the basic gist is that the Constitution gives the state legislature, and only the state legislature, the power to regulate congressional elections. And the state legislature the power to regulate congressional elections, and the state Supreme Court overstepped, indeed violated the federal constitution when it invalidated the map that these legislative officials had initially drawn. So Jamel, back in July, right after the court took the case, you wrote a column really raising the alarm about this cert grant. You know, and the title was like, the next time Trump tries to steal an election, he won't need a mob. I don't know if that was your title or not. But can you talk a little bit about why you did and do find this grant so alarming? I found this grant alarming, and I still find it alarming, in part because of the fact that there are at least three justices in the Supreme Court who have stated their interest in this theory. Clarence Thomas,

Neil Gorsuch, Sam Alito. And so that's three justices, two additional justices, all you'd need to kind of come to a judgment that would sort of make this theory or some version of it part of the American constitutional order. And I find that very alarming for the reasons that we have discussed. Because in the strongest form, I think this theory essentially free state legislatures to do whatever they want, right? Essentially free state legislatures to not just create highly gerrymandered, you know, under current law, unconstitutional maps that effectively disenfranchise, you know, large swaths of the population. But it would free state

legislatures, and going back to my point that all of this is kind of edifice for a particular goal, it would free state legislatures to, I think, unilaterally assign electoral votes after the fact. Before the fact, that's currently legal, right? Like if I live in Virginia, if the Virginia legislature and the governor tomorrow agreed on a bill that ended popular elections for the president and then assigned electors according to a voter at the state legislature, or just a bill that said, you know, we're going to give our electoral college votes to the Republican candidate, that probably is something they can do. Maybe not in that form, but the state legislature will decide that's a thing that they can do before the fact. But after the fact, once the election is held, it's set in stone, right?

Like once we've gotten to the point where people have voted, it is set in stone and nothing can be done. And part of what was happening after the 2020 election was the Trump campaign and President Trump were looking for ways basically to circumvent this, looking for ways that would enable state legislature to say, based on some pretext, that the election was invalid, that there was fraud, that there was something. And thus, with the election being invalid, the state legislature now has the authority to assign electors to the candidate it believes actually won the election. This was the motivation behind the various audits that have been attempted in Arizona and Wisconsin. But this was part of what was driving Trump to intervene in Georgia. This was the thing he wanted to do.

And so in my view, in a strong form, the independent state legislature theory is designed to allow this, to allow a situation in which it's November 2024, and Joe Biden has won Wisconsin by 2,000 votes. And the Wisconsin state legislature says, we think that those 2,000 votes, which came out of Milwaukee, are fraudulent. We're going to toss them out, and we're going to assign the electors to Donald Trump. And the governor can't veto this because under the theory of the governor has no role in election law in the states. And the Wisconsin Supreme Court can't adjudicate this either. It's a completely unilateral decision we can make.

So that's what's alarming to me about this theory, because it would allow, it would create the architecture for stealing an election after the fact. And I think even in its weak form, even in a weaker form, where you don't go as far as that, but you do create much more leeway for state legislatures to have this kind of plenary power over elections. It is purely, in my view, a partisan power grab, no matter whether the Supreme Court affirms a strong version of the theory or a weak version. That is why the theory exists. This, I think, is a good moment to ask Carolyn. Jamel sort of referenced strong versions, weaker versions. I think it's right that it is not a binary. There either is or is not an ISLT

that the court may recognize in this Moore case out of North Carolina. It matters a lot what the court says about precisely what kind of authority the federal constitution gives state legislatures. And there may be distinctions between what the court says in Moore and a potential application in a presidential elector scenario of the kind that you're describing, Jamal, because again, Moore is a congressional case, if we're talking about 2024, it's Article 2 as opposed to Article 1, which has the same singling out of legislature. But there is an argument that folks who say, well, whatever the court does and more, it's not going to affect the ability of legislatures to

override the will of the people. And I think that's the sort of projected confidence that no way would the court say anything that could support that theory is a little hard to swallow in light of the term that we all just experienced. But their argument is the Constitution separately gives Congress the authority to set the date of presidential elections. And so there's a separate constitutional obstacle to a legislature doing what the Wisconsin legislature in your scenario would do, which is after the fact to basically take back the power it had given to the people. Now, I'm not sure that response is quite right in that if the Wisconsin legislature on election day decided to try to take the power back, that could still be consistent with the federal

statute that is passed pursuant to the constitutional grant of authority to Congress to set the election day. But I guess maybe, Carolyn, I think there's a spectrum of possibilities. I don't think we want to walk through all of them. But just what the basic buckets of options are, if the court does say the North Carolina Supreme Court had no authority to throw out this gerrymandered map, like what might it say generally about redistricting and partisan gerrymandering? And also, what might it say either formally or I think just even rhetorically to offer support for the kind of effort that Jamel is talking about? Because to my mind, that's actually really important. The court is probably not going to say presidential electors can be directly selected by state legislatures because that's not an issue here. But if it talks in particular ways about the unique status of state legislatures, that gives both legal and political cover, I think, to a legislature that wants to do exactly what Jamel has just described. that regulate federal elections, which are state laws that regulate federal elections, operate in this special state constitution free zone, and that it's the federal courts,

not the state courts, but really the Supreme Court, that is going to be the ultimate arbiter of what all of those laws mean. So instead of having state Supreme Courts and state appellate courts do what they've been doing for almost two and a half centuries and say, here's the state law, here's what it means, we're going to have the Supreme Court potentially able to come in and second-guess those decisions and say, well, yes, but not as to federal elections. We're going to say it means something else. So I think we can all imagine how that would change the way elections are run and the way election litigation would operate. One way of thinking about it is it's a perpetual litigation machine.

I mean, it's never going to be possible for there to be no issues of interpretation, no issues of administrators exercising their discretion, that somebody who's unhappy with the way it's coming out wouldn't run to federal court and run to the Supreme Court and say, no, no, no, they got it wrong. They're not honoring what the legislature did. So it would be an enormous shift of power to the Supreme Court, which is, I think, incredibly important here. They don't have to go that far. They could still rule in favor of the North Carolina legislature without going that far. For example, they could say, well, we know this is a law that specifically is about federal elections because it's congressional redistricting as opposed

to a general law that applies to all elections. So we know it's just about federal elections. And because the North Carolina Supreme Court relied on this very general language in the Constitution, we don't think they should be able to do that, as opposed to, say, a constitutional amendment, as which many states now have, doing things like setting up an independent redistricting commission, which is something the court did actually uphold in 2015. So there is a range. And of course, they could say the whole thing is wrong. And when state legislatures operate in this area, they operate the way they do in all other times and the state constitution applies.

Just to expand a little bit on the range of outcomes and how this relates to the Eastman theory, Jamel, that you were referencing, one possibility on how the Supreme Court might adapt the independent state legislature, I'm going to do the annoying thing and say, again, quote, theory without kind of going the full Monty, would be if the court said, well, one thing state courts can't do is enforce vague or like general state constitutional provisions when it comes to federal elections, even if they can enforce potentially specific ones, like ones creating an independent redistricting commission. And I happen to be one of the people that thinks that even if the Supreme Court in this case adopts a very

maximalist version of the independent state legislature theory, there would still be a distinct issue that the court would have to confront in a world in which individuals went to the ballot box, cast their votes, and then the state legislature came in and said, we actually don't like the results. We decide to throw out the votes and just appoint the electors we want. And I think that would be because at the point at which the state legislature had initially set up the rules allowing citizens to vote, there would be a kind of reliance interest or a due process protected liberty interest in voting, you know, according to the state's rules that might check the constraint of the independent state legislature

theory. But even though I think that, there's no doubt in my mind that in a world in which the court rules for the legislature here, no matter what they say, they will be emboldening legislatures or other actors to try that gambit. And what we have seen in the wake of Dobbs is that matters. That can be enough to sometimes importantly nullify the exercise of a federal right in the event that a federal court, including the Supreme Court, won't subsequently intervene. So let's say the Supreme Court in Moore v. Harper says, well, all we're deciding here is state courts can't enforce vague state constitutional provisions because that undermines the state legislature's supremacy. That doesn't stop John Eastman working in conjunction with a gerrymandered Wisconsin legislature from saying, well, we're just going to choose to throw out the votes in the 2024 election and declare Donald Trump the winner instead of Joe Biden, who won the popular vote, you know,

emboldened by the Supreme Court's decision and more? And what is to stop particular election boards from trying to dispute particular votes to the same end? And if a federal court doesn't step in to stop that, that will accomplish the same result as if the Supreme Court embraced the insane Maximus version of ISLT anyways. Also wanted to talk about what this could mean for the ability to counter partisan gerrymandering, which is an enormous problem, a huge part of our hyperpolarized politics. So in 2019, in Rucho versus Common Cause, when the Supreme Court slammed the door to federal court challenges to partisan gerrymanders, it, you know, pretended to and did acknowledge how problematic and indeed anti-democratic extreme partisan gerrymanders are, which essentially

allow politicians to insulate themselves from democracy and lock in their own power at the expense of voters. And the Supreme Court said, all we're doing is saying we, federal courts, are not able to provide relief, but by all means, states, adopt independent commissions, federal courts, are not able to provide relief, but by all means, states adopt independent commissions, state courts construe state constitutions to provide relief. And at least on that level, adopting this independent state legislature fanfic would just be an enormous about face. Not to say the court won't do it, but, you know, I also wanted to kind of point that out. Anyone want to venture any predictions about the likelihood that John Roberts walks back the really strong embrace that he seemed to demonstrate in the Ruscio decision for these alternative mechanisms for reining in gerrymandering?

Or maybe it doesn't matter because his vote actually isn't dispositive anyway. That's my thought. The independent state legislature theory seems to be a bridge too far for someone like John Roberts, specifically because of its extremely far reaching implications. And I don't think he would walk back his opinion, Rucho, in that way. But then his vote doesn't matter. I mean, that's kind of that that's at the end of the day, his vote does not matter. Perhaps the one way in which he matters in this is if he does, if he if he is reluctant to go that far. John Roberts does not have some great voting rights jurisprudence. In fact, he has a terrible one. I do think that this would cut against the legitimacy of the Supreme Court such that it pertains legitimacy.

That's what makes him nervous. It gets to those problems and issues. And I think the role he would play in this would basically be in trying to persuade someone like Kavanaugh to kind of like not go down this road, recognizing that Kavanaugh appears to be the conservative justice who does seem to be at least concerned with this public appearance in light of everything. But as far as him going back on his previous views, I don't, I just, maybe I'm totally wrong about this, but I just don't see that happening. This theory seems actually kind of out of character for Roberts, who, whose undermining of voting rights protections tends to try to rest itself on some kind of like a higher principle

than just power politics, right? Like Shelby County is about, you know, this insane idea of state sovereignty and also, you know, this insane idea of state sovereignty and also, you know, a colorblind constitution, which are things that you can kind of ground in the existing history, right? This goes back to an earlier point. I disagree with these ideas. I think they are wrong, but they are not sort of inherently unreasonable. And the thing about the independent state legislative theory, you begin walking in this like this just seems unreasonable based on any kind of clear reading of the text of the Constitution and any reading of the history around it. And I don't think Rauper should go for that. I agree with that.

It gives me a little pause is that in 2015, in a case where the court upheld the Arizona Independent Registry Commission, he wrote the dissent. But there are ways of distinguishing that, and Grucho came later. I also think there, he said in an opinion during 2020 in the Wisconsin case, he distinguished between federal court interference in elections and state court interference in election, or interference oversight might be a better word, in a very helpful and appropriate way. And I think it's also worth noting that Justice Kavanaugh, although he started out in 2020 joining some of these opinions or votes that seemed to support the ISLT, he actually didn't join the later ones. And he didn't join the opinion in the North Carolina case that the other three dissenters in which they said we should just reinstate the old maps. I'd like to

think that in light of the unbelievable amount of historical research that has actually come out since the 2020 election, that somebody like Justice Kavanaugh, who says he's an originalist, would really take a second look because there's been a huge amount of new research. In addition to the articles that Leah mentioned, there's a piece by a guy named Howard Smith. There's a piece by Michael Weingartner. They have just done exhaustive work on the origins of the relevant clauses, on the practice, and throughout the entire history of the country. And anybody who looks at that and says, yeah, well, it still says the word legislature is not taking seriously the methodology

that certainly an originalist would claim to engage in. If the chief were, as I hope you are right, Jamal, not to embrace this theory, it would also be this like very welcome example, I think, for people who believe in law, because of course, the Chief Justice was among, you know, the three lawyers who are now on the current Supreme Court that was part of the Bush campaign legal team that originally pressed this theory. And of course, it's one thing to advance a theory, you know, that helps your client and whatnot. It's entirely another to do so when you are a justice on the

Supreme Court. And the idea that the court would all of a sudden embrace this independent state legislature claim once three of the Bush campaign lawyers got on the Supreme Court was about to be this perfect example of the lack of distinction between politics, advocacy, and law, and it still might end up being so. And to be frank about the Supreme Court, it's in the wake of Dobbs, its legitimacy among the broad public has just plummeted. That certainly among the Democratic Party, which I think it's like, you know, in the 30 percentage, 20 percentage point range. But other than Republicans, large swaths of the American public have come to take a, if not hostile, then like skeptical view of the Supreme Court. And this is the kind of decision, if the court were to decide in favor of the North Carolina legislature,

North Carolina Republicans, this is the kind of decision that would send those numbers plunging even further down. And the real problem for the court in that scenario is that argument, the kind of like the actual unifying thing of the jurisprudence here is accumulating influence and power within the Supreme Court, ruling in favor of North Carolina Republicans could potentially be just a huge blow to that project. What Jamel just said in some ways is why I worry that the court might be tempted to do this

because as I was saying before, this is a huge power shift of control of federal elections to the Supreme Court might be tempted to do this, because as I was saying before, this is a huge power shift of control of federal elections to the Supreme Court and away from all other institutions. Yeah, this calculation can kind of go both ways. If you want to take the view that Congress will never do anything to us, then you might not just, you know, go whole hog. Jamel, since we have you, I cannot resist expanding the lens a little bit to talk about some other related topics that you've been thinking and writing about.

So the potential adoption of the ISLT that we have been talking about is not happening in isolation, right? It's part of a larger legal landscape in which one of our major political coalitions, which is now in firm control of the Supreme Court and has lots of holds on power in the states and even in the minority in Congress, seems to be working to make democracy ever less democratic. So you've written a lot about the Electoral College, about the Senate, about selection in the House. I mean, I guess, do you see connections between the ISLT specifically and all of these other developments in our political and legal lives. Yes, I do. I see this as part of a broader tapestry of efforts to essentially build a system of minority rule out of the current American political system. Build a system of minority

rule is a bit of an odd phrasing, because I think you can make a case that in the existing institutions of the United States, there's sort of the inertia lens towards like a strong counter-majoritarian bias, and it's taken a lot of work to kind of pull it away from that. But I think Republicans recognizing that, I mean, Democrats and liberals will often cite the accurate fact that Democratic presidential candidates have won the popular vote in all but one election since 1992, which is an extraordinary bit of information, right? That's actually extremely unusual for a single party to win the popular vote that consistently over that long a period of time. And with quite a number of those wins being significant, not like, you know, not

like minor, minor margins, but like in 2016, more than 2 million votes, and so on and so forth. And the one loss in 2004 being actually quite narrow. Republicans are aware of this, they know this. They're aware of the fact that although it is more than possible to compete for voters as demographics change, that particular kind of small state, anti-government, hard right ideology really only appeals to sort of like a narrow slice of the overall American public. They're all aware of this. And so in my view, kind of what we're witnessing is an attempt to weaponize the counter-majoritarian structures of American politics to kind of slow any kind of change to the overall political order that might result as a result of demographic change or political

reform or whatnot. Or at least that's sort of what it seemed to be in the lead up to 2016. Post-2016, it does seem to be a deliberate effort to not just preserve spheres of influence in the states, to make an historical sort of analogy, right? Like the Jim Crow system, you can think of it as a wall over the South erected by white elites to protect the internal workings of the white South and of the South from national elites. That was the point of it. And there was, for as much as those Jim Crow elites used or tried to leverage their power in national politics as much as possible, and often quite successful at doing it, there were limits to that. They were still essentially junior coalition partners with other factions and groups in

American society. I think the renewed commitment to the Electoral College, to the Senate, this independent state legislature theory, all these things that we're seeing now, I think represents an effort to bring power to states and state legislatures and to use the power on the state legislative level to then kind of shape national politics overall, not just to defend, but to use the counter-majoritarian structures of American governance to shape American governance for everyone. It's less of a defensive action and much more of an offensive one. And so the Supreme Court and the state legislatures and these theories and these things, they all kind of work in tandem with each other. The Supreme Court says it's unconstitutional to ban concealed carry or

to put tight regulations on concealed carry. And that is a preference of these highly gerrymandered reactionary states that they've then been able to impose on the rest of the country, including those states that reject this. So there's no principled commitment to state sovereignty here. So that's the relationship I see happening. Like to borrow Ron Bronstein's language, Ron Bronstein writing for The Atlantic, kind of there's this like red America or this sort of structure of government and social relations in red America. And that these Americans or these elites are no longer content with just sort of having it, but in fact, imposing it. And the kinds of legislation that's been discussed since the Supreme Court's decision in Dobbs, I think, is actually kind of like the paradigmatic example of what all this is going to look like. It's not going to be a world where, you know, Virginians choose what they want to do in abortion and North Carolinians choose and West Virginians choose.

What do you call people who live in Maryland? I don't know. Marylanders? I don't know. That's definitely wrong. Bad drivers. It's going to be, oh, South Carolina doesn't like the fact that its citizens can go to Virginia to get an abortion. And so it's going to try to extend its authority over its residents as they go to other states. And it's going to appeal to the Supreme Court to try to

affirm that extension of its power over citizens. That's kind of the world we're looking at. And the independent state legislature theory plays into this as a mechanism through which these states cannot just have outsized influence on the outcome of the presidential election, but determine the presidential election and determine the competition of Congress beyond just the Senate. I don't think any of that is inevitable, but I think that's sort of like, if this is like a Tetris game, this is what each block looks like on the way to clearing the line. I think that is a really somewhat frightening, but insightful description. And I think it's part of why it's not a coincidence that all the cases in which the ISLT has emerged from, all the states, are swing states.

They're swing states with heavily gerrymandered, extremely GOP-dominated legislatures. But there are states where sometimes the statewide elections go the other way. So there might be a Democratic governor, there might be Democratic members of the Supreme Court. And this is an effort to not only gerrymander the legislatures, but then to extend that, essentially extend that gerrymander in a variety of different ways to affect the functioning of other state officials. And as Jamel said, Congress and the presidency. One last question while we have both of you, and I'd love to get both of your thoughts on this. So Jamel, you invoked Mark Lemley's paper on the Supreme Court increasing its own power and how that's really a through line in its jurisprudence in our democracy. And I guess, how should we or how are you both thinking about the relationship between the court, democracy, and minority rule as the court is poised to hear this independent state legislature claim case?

That's a big question, Leah. We like to end on this. Well, I think it's really important to lay out for all of us, but also for the justices themselves, the implications of ruling, especially in a maximalist way, in favor of the North Carolina legislature. And that's one of the things I try to do in my paper, is to really explore just how destabilizing a maximalist ISLT would be, and not just in any given redistricting cycle. If a state constitution can't be applied to federal election law when it says something like we guarantee free elections? Well, there's enormous amounts of precedent where state courts have struck down various

different election laws over decades as violating those state constitutions. Do those come back into being now? New Hampshire just did that in 2021. They struck down a registration law that applies to both state and federal elections. Is it down a registration law that applies to both state and federal elections. Is it like the zombie law that comes back to life for federal elections now, but not for state elections? It's incredibly destabilizing. And I'm reasonably sure when I look at what they've said in the opinions that they've written, that the justices who have at least embraced the ISLT, haven't thought about all of those things. Now, I'm not sure that my paper is going to persuade Justice Alito or Justice

Thomas or Justice Gorsuch, but I hope it might persuade, or the ideas in it at least, and other people's ideas might give pause to some of the other justices who might be flirting with the ISLT, not just that there's no basis in history and practice and logic and theory, but also it's going to have incredibly complicating, destabilizing consequences going forward. First, I agree with every point there. And I ultimately think that this is going to be a question of politics. It's going to turn on what kind of the pivotal members of the Supreme Court, what they are willing to do in support of the goal I'm going to presume that they have, because, you know, every indication says that they have it, of strengthening the Republican Party's position in national politics. With regards to the Lemley paper, I find myself very persuaded by the argument there, in part because it just helps, it helps bring together a lot of otherwise like incompatible jurisprudence. Like a lot of decisions that do not, that are not consistent,

that do not make sense from case to case, do make sense if you think of them as an attempt to bring power under the aegis of the Supreme Court. And it makes sense given the larger patterns of institutional drift over the last 30 years. As Congress has become weaker, as the presidency has become stronger, and as the courts have begun to take up the slack left by a weak Congress. So it kind of fits the broad pattern of where American governance has been going for as long as I've been alive and certainly for longer. And in that context, though, I still think it comes down to the political decisions that

justices are willing to make. It is entirely possible to imagine five justices, including Kavanaugh or including Roberts, states justices, who want to endorse some version of the independent state legislature theory but are willing to kind of – two of them or one of them is willing to kind of take a longer game towards accumulating this kind of power than doing it all in one fell swoop or doing half of it, doing half of it in one swoop. And it's the extent to which I think these are at base political calculations and not so much legal ones that I think that that provides room, right, for sort of trying to maneuver and beat down this theory. And that's where I really think so much of the great research work that's been done, Carol, in your paper, which I will look forward to reading, is important because it can help create political pressure for not going down this route as much as it can provide persuasive legal and historical arguments.

I think creating the political pressure in an atmosphere where the court is already reeling from the political consequences of one decision. And I'll say this, it's kind of an open question right now how the midterm elections are going to go down in a way that wasn't the case at the beginning of the year. That at least as of August, people are sort of like, you know, Republicans are still favored, but who knows what's going to happen. If through some, you know, series of unlikely and unprecedented events, Democrats hold one or two chambers of Congress in November, I actually think that this theory dies on the vine, at least for now. I think that kind of political victory, which you'd likely be able to tie to Dobbs, is the kind of backlash that would at least push five members of the court,

obviously the Democratic appointees, but like Robertson and Kavanaugh, perhaps even Gorsuch, to kind of like hold off for the moment, recognizing that the court is insulated from public accountability, but it's not immune to it. I'm not sure if that's an optimistic note, although it is in some ways, but certainly food for thought. Thank you so much, Carolyn and Jamal, for joining us and sharing with us your expertise and wisdom. We really, really appreciate it. It's my pleasure. Thank you so much.

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Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Thank you. from Amelia Montooth and summer intern support from Anushka Chander.