The New Yorker Radio Hour - The Supreme Court Case That Could Upend Elections

Episode Date: December 2, 2022

J. Michael Luttig is a retired judge of the U.S. Court of Appeals and a prominent legal mind in conservative circles, close with figures including Clarence Thomas and William Barr. On January 5, 2020, he got a call from Vice-President Mike Pence’s then-lawyer asking Luttig to publicly back Pence’s decision not to attempt to overturn the election the next day. Luttig tweeted that the Vice-President had no constitutional authority to stop the election, and suddenly the judge was thrust into the center of the crisis. Now Luttig is siding with Democrats as co-counsel on the Supreme Court case Moore v. Harper, which he tells David Remnick is “the most important case, since the founding, for American democracy.” At the heart of the debate is the independent-state-legislature theory, a once-fringe legal concept that Donald Trump and his allies believe should have allowed Pence to reject the popular vote in 2020. If the court adopts the theory, it could grant legislatures essentially unfettered authority to run national elections; they could not be challenged even if the election violated the state constitution. Such power, in the hands of a gerrymandered legislature, could be used to bypass the popular vote and appoint a new slate of electors, effectively empowering state lawmakers to choose a winner. The court will hear the case on December 7th. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. This year's midterm elections ended with a sigh of relief for defenders of democracy. There seems to have been no violence and relatively few races that were challenged by the losers. Extremism fared poorly. But a significant number of election deniers did win seats in the House of Representatives, and states are still chipping away at vote. voting rights, and Donald Trump will continue to do everything he can to undermine faith in the

process. So we're going to take a look at where we stand now in the wake of that election. And in our next episode, I'll be talking with the authors of the cheerfully named bestseller How Democracies Die. And we'll start today with Jay Michael Ludig, a retired judge of the U.S. Court of Appeals. Ludig is quite a prominent figure in legal circles. He's close to everyone from Clarence Thomas to William Barr, and he was mentioned as a Supreme Court pick during the George W. Bush administration. But Lutig finds himself at odds now with the Republican Party. And in his testimony to the January 6th Committee, he harshly condemned all efforts to cast doubt on the 2020 election.

Donald Trump and his allies and supporters are a clear and present danger to American democracy. I don't speak those words lightly. So this well-established conservative is now allied with the Democratic Party on a legal case of enormous consequence. Judge Ludig is co-counsel in Moore v. Harper, which is appearing in front of the Supreme Court on December 7th. That case hinges on what is known as the independent state legislature's theory. That was the justification that Trump and his team gave for their

effort to overturn the presidential election. So the stakes for that case could not be higher. Judge Ludick, you told our writer, Jane Mayer, that you signed on as co-cancel because you regard Moore v. Harper as, without question, the most significant case in the history of our nation for American democracy. What exactly is this case and why is it, as you put it, legally the whole ballgame? The reason that Moore versus Hart is. Harper is the most important case since the founding for American democracy is this. At issue in the case is something called the Independent State Legislature theory of constitutional interpretation.

Whether the state Supreme Courts are authorized to review redistricting decisions under the state constitutions and invalidate those redistricting decisions where they are unlawful. But to cut to the chase, I think, I would say this. Gerrymandering of congressional districts is one of the most nettlesome and important political issue of our times and the independent state legislature theory that is being argued by the petitioners in Moore v. Harper that would allow for partisan gerrymandering to go unchecked from now on. It would, in theory, allow the state legislatures to appoint electoral slates who would vote for a presidential candidate who did not win the popular vote in the states

and transmit those votes to Congress to be counted on January 6th in exactly the same way that Donald Trump and his supporters attempted to do in 2020. Now, this all comes with an enormous amount of political, context. You are a figure, I think it's fair to say, on the conservative end of the legal establishment, you clerk for Anton Scalia and Warren Berger, you helped Clarence Thomas prepare for his extremely dramatic confrontation with the Senate Judiciary Committee. You have a close relationship with Chief Justice, Roberts. And on January 5th, on January 5th, a lawyer for Mike Pence came to you for advice about what Vice President Pence should do in the face of the President of the United States

pressuring Pence to, in essence, reverse the election come the next day. That came to you as a surprise. What was your reaction to that? Tell me that story. Well, in short, Richard Cullen, who was then outside counsel to the vice president and had been for, a couple of years, and who was a dear friend of mine, called me first on the night of January 4th, and asked me what I knew about John Eastman. John Eastman was a clerk of mine 25 years ago, and I told, you know, Richard John was a constitutional scholar, an academic, a brilliant individual. I told him that, and I said, well, why are you asking? And Richard said, you don't know, do you?

And I said, no. And he said, well, John is advising the president and the vice president that the vice president has the authority to overturn the election by rejecting state elector's votes from some of the swing states and or delay the counting of the vote on January 6th. order to give swing states opportunities to submit alternative electoral slates. So I said, no, I didn't know that. I said, you can tell the vice president that I said he has no such authority and he has no choice but to accept the electoral votes as they have been transmitted to Congress.

And Richard said, he knows that that's your view. And I said, okay, you know, I'm available to help in any way that I can. And we hung up. My wife said, well, what was that? And I told her, and she said something like, oh, my God, you have to do something about this now. You have to stop this. And I said, well, I really have no role here whatsoever, and there's nothing I can possibly do. Was your immediate sense that John Eastman had a sincere legal belief that this was possible, legal and right,

or that he was part of a plot, to be perfectly honest, as it's been put by the January 6th committee, part of an attempt at a coup d'etat? I thought, knowing John, that there had to be something to what he was saying, but I knew at that point, from my own knowledge of all the issues, there was nothing there that would warrant advice to the President of the United States of America, who was at that point attempting to overturn a presidential election. But did I think that John must be thinking something? Yes. And it turns out that he was, but once I knew what he was thinking, I categorized. rejected it as a basis for advising the vice president. But in any event, so my wife and I went to

bed that night with her pleading with me to do something and I saying to her repeatedly, I just, there was nothing I could do. So then the next morning, the phone running, and it was Richard Cullen. This is the morning of January 5th, and he calls and he says, you know, Judge, what are you doing? I said, I'm just having my coffee. And he says, look, we have to do something. you know, immediately. And I said, well, what do you mean? And he said, the vice president is meeting for lunch with the president to tell him that he's not going to yield to the president's demands the next day. And Richard said, we need to get your voice out to the country, explaining that the vice president doesn't have the authority either to award the

presidency to Donald Trump or even to delay the counting of the vote. And that set in motion, you know, me scurrying around trying to figure out what it even meant for me to get my voice out to the country. I was retired. I didn't even have a fax machine or a box of stationary. I've got to assume that you were not that active on Twitter. I did never even cross my mind because I didn't know how to tweet, but at the end of the day, I ended up tweeting what the country knows now to be the tweet that the vice president

included in his letter to the nation on the morning of January 6th as he was on his way to the Capitol. For those who don't recall, the tweet read, the only responsibility and power of the vice president under the Constitution is to faithfully count the electoral college votes as they have been cast. Now, I've got to ask, did you have a hard time

setting up a Twitter account? Oh, my gosh. My very first tweet took five hours, and I literally asked five of the country's leading Supreme Court reporters to help me.

And at that, I believe I ended up printing out what I wanted to say in word, taking a snapshot of it and posting a picture of that word document. So the Republic is hanging in the balance, and you're having a hell of a time trying to figure out how to be Paul Revere and set up a Twitter account. That's a little nerve-wracking. It was more nerve-wracking than the actual drafting of the words that went into the tweet, David.

I'm talking with Jay Michael Ludick, whose co-counsel in the Supreme Court case, Moore v. Harper. We'll continue in a moment. What was your reaction when you heard that the Supreme Court had agreed to consider the independent legislature theory of John Eastman's in the case of Moore v. Harper? Four justices of the Supreme Court signed on to hear this case. Why do you think the Supreme Court has agreed to consider what really can be described as a fringe legal theory? Well, the Supreme Court takes many cases in which it, as in this context, affirms the decision below. So the fact that the court took it means nothing beyond the fact that the court understands that this issue is of great national importance and that it has an obligation to decide the case. You strike me as someone who does not think that the alarm about the state of American democracy is overstated. Tell me what you think has happened in the conservative movement in the Republican Party. As somebody who's now retired and free to speak about this, what happened that things shifted to such an alarming degree that we're in the state we're in?

Yes, I'm deeply concerned that American democracy, seat, you know, today is on a knife's edge. And there's no dispute as to why it is either because you had an incumbent president who was intent on overturning a presidential election and tried and almost succeeded. The Constitution doesn't, contemplate and therefore does not provide for something like was attempted on January 6. So suppose the vice president had gone along and announced in the joint session that Donald Trump was elected the next president of the United States. There is no entity of government and no official of government,

including the Supreme Court of the United States, who would have known what to do. You know, we've just come through a midterm election where election deniers were often defeated at the polls, and some people are responding like saying, problem solved. Do you have that level of hope? I just watched an interview on public television with Bill Barr

in which he couldn't have been more critical of Donald Trump and obviously hopes that he will be eliminated as a candidate. But when pressed to say, would you refuse to vote for Trump, if it came to that in a general election, he said, well, it would have to depend on who the opponent is. He didn't rule out another term for Trump, even though he's so obviously repelled by Trump, even though he reside at the very end.

That to me is very, very curious. Bill's a political figure, just like all of the other political figures and the political leaders in our country today. Our politicians and our political leaders have failed us. That's the way I see it. And in this instance, they failed us, you know, at the very end by refusing to speak up.

Well, how do you, if I can interrupt, I'm sorry, how do you analyze that? Is it so wonderful being in power that you sell your soul for it? I don't quite understand it. I just don't, for the life of me, forgive my naivete. I do not understand why, at this late date. It is embarrassing, but our political leaders will cling to power at any cost, and they will say anything necessary in order to cling to their own power. They actually don't even try to rationalize it, which in itself is disturbing.

But revealing, that's abdication of official obligation and responsibility of the highest order. So that brings me then to the heart of the question you just implicitly asked, which is, you know, where do I see things today? I've said very recently on the heels of the midterm elections that, American democracy was victorious in that election, primarily because the election deniers were resoundingly defeated at the polls. Now, of course, that statement predated the former president's announcement that he would run for the presidency again in 2024. And so, you know, unless he tells us differently, you know, his intent is to carry forward with his plan to overturn the

2024 election if it becomes necessary. But I've been sounding the alarm as to the Electoral Act reform also. I've been advising both the Senate and the House to increase the percentage of each house necessary to sustain an objection that is made. Right now, literally, it only takes one member of each house to object to a state electoral slate and send it into the joint session for decision on the objection. Well, we saw, you know, how pernicious that provision is, it takes as one senator, one member of the House, and of course, we had that in 2020. Judge Ludick, thank you so much for your time. Thank you again for having me.

Jay Michael Ludig is a retired judge of the U.S. Court of Appeals, and he's co-counsel in the upcoming Supreme Court case, Moore v. Harper. Oral arguments will begin in the case next week. Now, in a few days, I'm going to interview Ina Garten, the great barefoot contessa of Food Network fame. And if you have a question, you are dying to ask Ina. About a holiday favorite you can't seem to crack or some recipe, that's just a little out of your comfort zone.

Send it to us. And make sure to tell us your name and where you're writing from. And I'll put some of your questions to Ina Garden when we meet. Send us those questions by emailing New Yorker Radio at WNYC.org. That's New Yorker Radio, all one word, at WNYC.org. or find us on Instagram and respond to our Instagram story at New Yorker Mag. And we'll see what Eina has to say. I'm David Remnick. Thanks so much for listening.

See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Yards, with additional music by Alexis Quadrado. This episode was produced by Breda Green, Calilea, David Krasnow, Louis Mitchell, and Gauphin and Putubueli. along with Adam Howard, Jeffrey Masters, Will Coley and Michael May. And we had assistance from Harrison Keithline, Mike Cutchman, Meher Batia, and James Napoli.

The New Yorker Radio Hour is supported in part by the Trina Endowment Fund.