By all accounts the West Wing pays attention to Matt's writings. And now the judiciary follows Milan? If we can manage to get Congress listening to Maya, the country will be in good stead! 👍
Glad it failed, but genuinely awful this case wasn’t 9-0. I think Gorsuch is genuinely an idiot savant who cannot make one inference beyond what is literally stated in text, but Alito and Thomas would overturn democracy in a heartbeat if they could get a conservative dictatorship out of it.
I was very pleasantly shocked that Roberts flip flopped, given how strong his terrible dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission was. I was not expecting him at all to do this. Part of me thinks he pulled a Warren Burger and changed his vote so that he could write the opinion himself and corral its contours once Kavanaugh and Barrett had made their decision.
Journalists who went to these schools pretending that Asian students weren't discriminated against was so dumb. Very interested to see what elite schools do in response.
The Chinese part of my family is happy about this. They feel that Asians have basically been getting the worse end of both sides of this for a long time.
Yes ofc, the question was about the methods. Obviously getting rid of standardized test requirements (I'm curious if _anyone_ keeps these). Possibly further reliance on legacy and athletic admissions
I think you just base everything much more on the essays, extracurriculars, and recommendation letters. You can use those to approximate, with reasonable precision, the class you would have admitted anyway. And because evaluating those things is inherently subjective, it's very hard to challenge in court.
There's a lot in here, but just pulling this from the syllabus:
"Twenty years have passed since Grutter, with no end to race-based college admissions in sight. But the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment."
"Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether *South* Asian or *East* Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs."
I've always thought this was silly. Harvard is perfectly aware of all of these distinctions, and tries quite hard to achieve diversity inside categories. But to do this under the prior legal standard you had to make the system ridiculously opaque
Thomas has a monster 58 page concurrence, of which its goal is "to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination."
Gorsuch also has a 25 page concurrence arguing that Title VI of the Civil Rights Act of 1964 doesn't allow it either.
Kavanaugh has a shorter concurrence really emphasizing the time limit that O'Connor placed on Grutter.
"Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent."
She also ended it with the "arc of the moral universe" quote from MLK Jr.
Jackson, from a shorter dissent:
"The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish."
> It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country
I'm not reading the whole dissent, ain't nobody got time for that, but embedded in this statement seems to be the assumption that AA was actually reducing race-based disparities rather than advantaging high-SES black kids and leaving the poor on the outside looking in. Kind of disappointing.
Thomas is at heart some type of Black nationalist. Telling him he needs special treatment because of his skin color is condescending and pisses him off.
With a limit number of 'seats', there is no functional difference in giving all groups except X a bonus on admissions, versus giving X a negative/penalty.
I'm sure we'll soon have a vigorous new comment thread, as per usual, but here's a handy link to the original if anyone's interested in what commenters were saying last fall:
Just as a heads up, since this thread has SCOTUS as a topic, we are likely going to have more major opinions come down in about an hour. The opinion website is here:
I’m not a lawyer either, but it seems to me that the court couldn’t rule to overturn judicial review in the states without ultimately ceding its own relevance completely to congress. On the other, the court treats precedents promiscuously, so maybe they actually thought about this seriously.
Ehh not really. ISL relied on a misreading of a very specific part of the constitution, not on a broader question of separation of powers. ISL wouldn’t have overturned Marbury v. Madison anytime soon.
You may right in a system that works with rules and traditions that are honestly applied. I’m more skeptical in that I think the court’s current role is to maintain a veneer of institutional credibility while redefining government structure and social policy to meet the objectives of the justices’ benefactors. To that end, they throw out the law books and make up stuff, albeit packaged “white shoe” stuff. So the actual particulars of any given case don’t matter.
But I could be wrong- they might really be honest brokers humbly plying their trade. And what do I know - I’m no lawyer.
It wasn't just judicial review in the states that was at state: the power of the governor and the citizens via initiative and referendum could have also been at risk.
I think the conservatives on the Court realize that they're approaching the limit of how much stuff they can pull off before a Democratic Congress strips them of some of their powers.
It's fairly surprising that neither party has tried this already. Even when Republicans held a trifecta, they never legislated to take away the Court's power to uphold abortion rights. (Maybe some of them realized that Roe v Wade was actually good for them electorally.) But it seems as if Roberts et al. have pulled back from the brink a little.
I think everyone recognizes that once you start stripping the courts of its powers, its hard to stop it. To take issue in this article, how would courts at either the state or federal level respond to North Carolina legislature creating new districts and also stripping the courts of the power to review it?
The supreme court doesn't review maps for gerrymandering, but they said that state courts can apply the state's constitution to the process. If the legislature removes jurisdiction from the courts per the state's constitution, how would SCOTUS get involved?
Let's be more specific - If in 2011, the PA legislature had passed its gerrymandered map and in the process stripped the courts of its jurisdiction to review the maps - how would a state court handle that? How would SCOTUS handle that?
I don't think there's anything SCOTUS could do consistent with current precedent, since its job is to look for *federal* constitutional violations and they've already decided that gerrymandering isn't one. If they reversed that decision, as they should, any state-level shenanigans wouldn't matter.
I think reversing that decision brings a bunch of issues up that the court doesn't really want to deal with. How do you decide on whether a map is gerrymandered or not is very much in the eye of the beholder at times.
For example - Florida had a partisan map making process in 2022 that enabled Republicans to win 13% more seats of Florida's delegation than deserved (58% of the vote, 20 out of 27 seats won).
Definitely a gerrymander that the court would strike down - yes?
And yet...
California had a "non-partisan commission" create its map and it generated almost the exact reverse bias for Democrats who won 13% more of the California delegation than they did the vote.
California's electoral results bias against Republican's from a non-partisan commission was more impactful than then Texas and Florida's partisan gerrymandering even though the latter have almost a quarter more Representatives (64) than California (52)
+3 Rep for Texas, +3 Reps for Florida, -7 Reps for California.
If SCOTUS reviews California's map, do they accept that geographic dispersion means that its not a gerrymander, so keep the map? Or do they tell California to ignore geography niceties and get extremely granular to create maps that more properly reflect the partisan reflection in the state? If the former, what do they do when Alabama submits a new map that geographically looks good, but lock up a huge number of black voters in one district again? Are they going to try and intuit the intentions of the map makers, or are they going to look at the results?
As I understand it, jurisdiction stripping will only apply to statutory powers, though--if SCOTUS can think of a constitutional reason to flex power that will stick, they'll still have that.
I'm sorry, this just isn't correct. The Court did not reject the independent state legislature theory. What it did was reject some of the more extreme versions of that theory that were advanced by the state, while adopting a version under which the Court claims for itself the power to review state supreme courts' interpretations of state law to determine whether, in the justices' view, those decisions go "too far" and thus amount to usurpations of the power of state legislatures. This is an unprecedented and shocking expansion of the Court's power, and a direct assault on our federal system. Federal courts have no business telling state courts how to interpret state constitutions. Period. Full stop. That is how pretty much everyone thought the federal system worked prior to Scalia and Rehnquist's radical concurrence in Bush v. Gore, and the Court's adoption of that theory (by a majority including three justices who were members of the Bush legal team in that case) is a radical expansion of the Court's role in that system . No one should doubt that the Court will use this new power, which will turn every state-court challenge to state election law into a potential federal case. And if anyone thinks Justice Kavanaugh's promise of "deferential" review of state court decisions will matter when an actual case with real-world consequences comes before the Court, well I've got a bridge to sell.
The real judo move is that the Court managed to pull off this breathtaking power grab while getting showered with media coverage about how restrained and moderate it is being, merely because it rejected even more extreme versions of the theory. This is Justice Roberts' hallmark, and when it works he is really good at it. In this case he even got the three Democratically-appointed justices to sign on, presumably to avoid a more extreme result and to have some influence on the opinion itself.
Milan's piece is really well-researched and written, and mostly spot-on. But it pains me to see Slow Boring add to the general media misperception of the significance of this case.
I mean...SCOTUS is always going to be capable of making a power grab whenever they want if they have the votes for it, and since they are very intelligent and talented writers, they can make up an opinion that will seemingly not contradict previous precedent. They didn't do so in this case, and that's cause for celebration.
And as to "Federal courts have no business telling state courts how to interpret state constitutions.", they very much should if the state constitution does something that is deemed to violate the federal constitution. Obviously SCOTUS could wield their judicial review in this regard for evil, but they can also do so for good. In the context of elections, Reynolds v. Sims is an obvious important case.
Of course federal courts can strike down state laws that violate the federal constitution. But the idea that that a state court violates the federal constitution by interpreting a state law in a way I don't like is really quite a claim.
No, that's been the law forever. There's even a Wikipedia page (see last paragraph of https://en.wikipedia.org/wiki/Adequate_and_independent_state_ground). All the Court did was reaffirm that general concept, without delving into how that would be specifically applied on districting, which is an inherently complex question.
The us is one single country, not a confederacy. In my irreverent opinion the fact that each state has its own rules for *federal* elections is a stupid archaism with chaotic potential (cf 2020 elections). It would do the us much good to standardize all of this on the federal level as *democrats* tried to do.
I'm not a lawyer so I can't say for sure if that's true. But it seems like there have been plenty of issues relating to state constitutions that went to the supreme court? Or were all of those situations in which the federal constitution preempted the state? Any constitutional lawyers around?
It's clear the Supreme Court can overrule a state court decision to the extent its substance conflicts with something in the federal constitution. For example, if a state court were to interpret a state constitution to say that only white people can vote, the Court would invalidate that decision because even if it is a correct interpretation of what the state constitution says, it is clearly contrary to the federal Equal Protection Clause.
What's new here is the Court claiming the power to overrule a state court decision solely because it thinks state court wrongly interpreted *state* law. For example, suppose the North Carolina Supreme Court were to say the fair elections clause of the North Carolina constitution prohibits gerrymandering, and strike down a district map passed by the North Carolina legislature as an illegal gerrymander. Under Moore, the federal Supreme Court now claims the power to overrule that case because it doesn't agree the North Carolina Constitution should be read to prohibit gerrymandering. that. The conceit is that the Court would decide that in its opinion, that reading of the state constitution "goes too far" from past North Carolina cases, and therefore it was the state supreme court that made the redistricting decision rather than the legislature, and the federal Constitution gives that power to the latter.
It's a big deal legally because under our system of federalism, the proper interpretation of state law has always been considered a matter solely for state courts, who have been free to develop their own jurisprudence and have the final say on what state constitutional provisions do and don't require. No one has thought the federal courts had the right to step in and accuse state courts of legislating from the bench. Now the Court says it can do that, which is a significant erosion of state sovereignty. It's a great example of how some partisans are all in favor of principles like federalism, until they produce results they don't like or limit the power of government institutions they control.
Interesting to see such a deep-dive (nicely done!) on constitutional law, even though Matt has said that he thinks constitutional law is “basically fake”. Milan, I take it you disagree with your boss on this?
I think that some judges (Roberts, for example) believe that what they do is different from the raw exercise of power and I think that tempers their decisions at the margin.
What do you mean by "understanding the mechanics" of an important system? Explaining why one thinks individual justices ruled as they did? Presenting one's own beliefs of what the constitution is saying and grading the justices on that point of view? Or, to be less pejorative, taking actual Supreme Court decisions as a given and then exploring the implications of those acts on the rest of our system of governance?
This “theory” was bogus. Scotus made sure to clarify that and get it firmly off the table. So why are we dedicating space for it again with a recycled article (relevant at its original publication but blissfully no longer relevant at all)?
Thomas issued a dissent. This issue is still alive and we shouldn’t fool ourselves into believing that there isn’t a network of corrupt radicals who will feed off his opinion like vampires at a blood bank.
This is too important to the authoritarian right for them to let go. Once the commotion dies down the right wing intellectual cover machine will restart their messaging on this. If Trump gets back in office it will absolutely come back after a ground swell of “akcshully law” discussions.
I would expect this and voting rights to both come back before the court in a few years.
I’m not spinning out about this and I don’t think anyone else should be either. I think that’s a key part of doomerism.
I’m simply saying that the ISL theory has some serious supporters at both the state and federal level. It was not unanimously shot down by the Supreme Court.
Even a small chance of this theory coming back should be taken seriously.
Yes, we should be vigilant, but we should also recognize that this could be the high-water mark for this particular malignancy. Conservative legal thinking (put scare quotes around as many of those words as you like) is not necessarily a ratchet.
We ate a very large and beautiful and strong dinner yesterday. It satisfied your hunger and mine (a 9-0-flavored dessert would have been nice). We will still need to eat tomorrow.
The risk arises not from the power of the dissent, but from the possibility that a President DeSantis or Trump gets to be in the big chair when the Alito, Thomas, and most critically Sotomayor seats become vacant. There's a fair chance that either of those guys would nominate the furthest-right appeals court judges in the country: folks well to the right of Kavanaugh or Barrett.
As I said on Tuesday: “MI and MN are under Democratic trifecta governments, PA is now split, and courts are hurting Democratic attempts to gerrymander NY, NJ, MD, WA, and OR more than they are Republican attempts to do so in FL, TN, MO... means there's just no reason to jump on ISLT from the perspective of advancing GOP prospects at the federal level.
There's a lot more to be lost from freeing NY, WA, OR, NJ, and the nonpartisan commission states (CA, CO, MI) to screw over the GOP as IL does than there is in maybe letting WI and TX squeeze an extra dribble of seats for them.”
The Democrats could conceivably engineer congressional maps from NY, CA, NJ, MD, and IL that would send fewer than 10 GOP representatives combined.
The GOP states which can do something similar have already.
I don’t think ignoring the fact it’s just bad legal theory is a good idea here. I expect a lot of the intellectual cover for this theory will continue to come from the “is it really that bad though?” school of thought.
Is a philosopher king really so bad? What if he’s really good?
the dissent itself is worthless but I guess the lesson would be that GOP wouldn't need 5 new judges to get ISL through, only 2 or 3. Which tbh isn't surprising at all (I thought the ruling was 50/50 to go one way or the other) except for the "the law is a real thing" people
No. “ISL” has close to zero honest supporters. It was an excuse for authoritarians trying to destroy democracy. There is no doubt that with this means out they will try others: legal, pseudo-legal and blatantly illegal. That’s because the authoritarian right is a major force in the country and *that’s* the threat. Being hyper focused one failed attempt, one method of attack proven futile, misses the forest for the trees (or rather for one tree that was just chopped down quite effectively ).
I’m not hyper focused on this issue. I’m essentially putting it on a list of things to watch out for when it comes to corrupt legal theory garbage in the future. Vigilance isn’t doomerism, caution isn’t defeatism. I’m aware some corners of the internet may be engaged in all sorts of panic about “woulda, coulda, shoulda” but that’s not what’s happening in this thread imo.
It’s not that different from qanon at this point. It’s not that it can’t be used dangerously, but it’s a waste of time giving it the time of day pretending it’s a serious idea. As you say, it’s garbage so why are we bothering getting into its weeds?
This specific article today is about the ISLT. That’s why I’m putting in my two cents about the value of vigilance here. I’m not hijacking a thread about something else because I’m panicked about a pet issue.
I’m a reasonable person! *discreetly pushes pile of various video game collectibles under my desk and out of sight*
I was cautiously pessimistic on the worries of ISL spreading further, now I've shifted to cautiously optimistic. It does not seem like Kavanaugh and Barrett want to open this can of worms, even if Kavanaugh explicitly but hypothetically left the door open in his concurrence. It'll never be dead but now I think it is in severe dormancy.
Hopefully. Or maybe he just found an opportunity to get one post out of his hands and give himself slightly bigger margins. To be fair his productivity is insane, esp considering the high average quality of his posts.
Oh right. I don’t recall if he’s ever explicitly stated that Monday is his mailbag call and Friday is his mailbag answer, but people in the comments eventually made clear to me that there was some sort of weekly pattern, and it seems to be that.
I'm very glad from a results oriented perspective at the case's ruling but I also think the dissent is right and that the case was moot at this point. I was also amused by Thomas poking at Roberts by quoting Roberts dissent in Uzuegbunam, which I also thought was moot but if there was a scale of mootness, less moot than this one.
More ridicule and less serious discussion are needed about ridiculous ideas and unserious people. Independent State Legislature Theory is a theory like the fiction of Ayn Rand is a theory: convincing to a subset of gullible and sassy young adults, who’re reading their most sophisticated work to date, untethered by experience or other form of clue how the real world actually works.
Groff v. DeJoy was unanimously vacated and remanded. Looks like a punt to me at very first glance that could come back up later, but there's a much bigger case that just came out that I'm going to focus on instead...
Perhaps some of the constitutional law experts out there can help me with my confusion: why should we care what no doubt brilliant constitutional scholars like the Amar brothers say?
The quotes from their work that Milan offers seem compelling to me on the ISL issue. But so what? What difference would that have made had the Supreme Court majority *not* agreed with them, but went off the deep end and blessed the ISL argument? You can do the most incisive constitutional analysis in the world but at the end of the day the Constitution is what five-plus justices say it is. Or is the whole point of constitutional analysis merely to be lobbying those justices?
How would the world be different if there were no scholars like the Amars?
Legal doctrines are fleshed out in law reviews, amicus briefs, and lower court opinions before going before SCOTUS. SCOTUS then has the final say or issues a narrow ruling that lower courts then have to use to make new rulings and the doctrine develops further before going back to SCOTUS on a different case. It is a cycle, that has developed from English common law tradition and the structure of the federal judiciary.
Kind of. It might be better to think of the process as a nationwide, multi-year brainstorming session amongst legal nerds. But the goal is to influence the opinion of the Supreme Court.
This was an interesting article and I'm glad the ISL theory got shot down. However, it continues to lead me to ask what should be the governing principal for courts (both federal and state) to use their power?
Since Dobbs there has been this strong push from progressives to undermine the legitimacy of SCOTUS acting to overturn legislative action. Ezra Klein had someone in his podcast arguing that Congress or the President may need to ignore some of the courts rulings, or use legislation to strip jurisdiction from the court. Matt has been very critical of the court's power as well and there are plenty of others who have aired similar ideas. And yet, having state or federal courts step in and overrule legislatures on these issues is still demanded in the name of fairness. But who gets to decide what is fair? Its quite possible that Republicans could get more votes for the house than Democrats, but lose their majority because how diffuse they are in states like Massachusetts and California. Is that fair, or should the court step in and redraw maps? To repeat, what is the underlying power you grant to the court even when it's held by conservatives?
What’s true of California and Massachusetts is also largely true of a big swathe of the South and Plains states.
Absent truly extreme wins on the gerrymandering front, popular vote wins have historically translated into House majorities, while retaining the geographic and individualized representation that sets us apart from PR systems.
Now I’m fine with a PR system, but most folks don’t want one, so no sense worrying about it too much.
Congratulations again, Milan, for your amazing victory singlehandedly convincing SCOTUS to rule correctly! 😉
By all accounts the West Wing pays attention to Matt's writings. And now the judiciary follows Milan? If we can manage to get Congress listening to Maya, the country will be in good stead! 👍
Congress and sports commissioners!
"Brett, this guy goes to Yale. Let's do what he says."
Who needs amicus curiae briefs when you've got Slow Boring?
Amicus Borae
Glad it failed, but genuinely awful this case wasn’t 9-0. I think Gorsuch is genuinely an idiot savant who cannot make one inference beyond what is literally stated in text, but Alito and Thomas would overturn democracy in a heartbeat if they could get a conservative dictatorship out of it.
I was very pleasantly shocked that Roberts flip flopped, given how strong his terrible dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission was. I was not expecting him at all to do this. Part of me thinks he pulled a Warren Burger and changed his vote so that he could write the opinion himself and corral its contours once Kavanaugh and Barrett had made their decision.
That, plus he has been moving his rulings leftward since he realized that the legitimacy of the court was in jeopardy.
And here's the affirmative action opinion:
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
Journalists who went to these schools pretending that Asian students weren't discriminated against was so dumb. Very interested to see what elite schools do in response.
Try to cover it up.
Buddy cop film where a FedSoc lawyer and DEI consultant have to work together to find the disparate impact in a college's admissions.
The Chinese part of my family is happy about this. They feel that Asians have basically been getting the worse end of both sides of this for a long time.
Yes ofc, the question was about the methods. Obviously getting rid of standardized test requirements (I'm curious if _anyone_ keeps these). Possibly further reliance on legacy and athletic admissions
I think you just base everything much more on the essays, extracurriculars, and recommendation letters. You can use those to approximate, with reasonable precision, the class you would have admitted anyway. And because evaluating those things is inherently subjective, it's very hard to challenge in court.
"There are no admission quotas in Ba Sing Se."
Screw bending the elements, I wanna bend the -law-!
There's a lot in here, but just pulling this from the syllabus:
"Twenty years have passed since Grutter, with no end to race-based college admissions in sight. But the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment."
This also stood out to me in the syllabus:
"Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether *South* Asian or *East* Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs."
I've always thought this was silly. Harvard is perfectly aware of all of these distinctions, and tries quite hard to achieve diversity inside categories. But to do this under the prior legal standard you had to make the system ridiculously opaque
Thomas has a monster 58 page concurrence, of which its goal is "to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination."
Gorsuch also has a 25 page concurrence arguing that Title VI of the Civil Rights Act of 1964 doesn't allow it either.
Kavanaugh has a shorter concurrence really emphasizing the time limit that O'Connor placed on Grutter.
Sotomayor. beginning a 69 page dissent:
"Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent."
She also ended it with the "arc of the moral universe" quote from MLK Jr.
Jackson, from a shorter dissent:
"The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish."
> It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country
I'm not reading the whole dissent, ain't nobody got time for that, but embedded in this statement seems to be the assumption that AA was actually reducing race-based disparities rather than advantaging high-SES black kids and leaving the poor on the outside looking in. Kind of disappointing.
Dude, you’re on it today!
Thanks! Late June SCOTUS opinion days are kind of like Christmas for me at the opposite end of the year.
Thomas concurrence is fire.
This has been emotional for him pretty much his entire life.
Thomas is at heart some type of Black nationalist. Telling him he needs special treatment because of his skin color is condescending and pisses him off.
The irony though is that he did in fact benefit from it, both in his school admissions and in his rapid rise through the conservative movement.
Everyone hurry and hustle into your designated political "teams" before you read the opinion!
/s
"may never use race as a stereotype or negative"
This part is so stupid.
With a limit number of 'seats', there is no functional difference in giving all groups except X a bonus on admissions, versus giving X a negative/penalty.
I was wondering why things got quiet over here, and now I see Matt has an entire article on this subject, in case anyone else was puzzled:
https://www.slowboring.com/p/19-thoughts-on-affirmative-action
'The universities’ main response to these criticisms is “trust us.”'
Basically encapsulates there entire thing in one sentence.
I'm sure we'll soon have a vigorous new comment thread, as per usual, but here's a handy link to the original if anyone's interested in what commenters were saying last fall:
https://www.slowboring.com/p/independent-state-legislature-theory/comments
So...I guess we'll have to wait until next week to learn who killed the Kennedys. [https://twitter.com/mattyglesias/status/1673775236024549378] (Even if we already know after all it was you and me.)
Just as a heads up, since this thread has SCOTUS as a topic, we are likely going to have more major opinions come down in about an hour. The opinion website is here:
https://www.supremecourt.gov/opinions/slipopinion/22
Thanks for link! Anything interesting so far?
Uh...I got it right here in this subthread:
https://www.slowboring.com/p/independent-state-legislature-theory-471/comment/17900124
I bought all my popcorn pre popped this week to save time on cooking.
I’m not a lawyer either, but it seems to me that the court couldn’t rule to overturn judicial review in the states without ultimately ceding its own relevance completely to congress. On the other, the court treats precedents promiscuously, so maybe they actually thought about this seriously.
Ehh not really. ISL relied on a misreading of a very specific part of the constitution, not on a broader question of separation of powers. ISL wouldn’t have overturned Marbury v. Madison anytime soon.
You may right in a system that works with rules and traditions that are honestly applied. I’m more skeptical in that I think the court’s current role is to maintain a veneer of institutional credibility while redefining government structure and social policy to meet the objectives of the justices’ benefactors. To that end, they throw out the law books and make up stuff, albeit packaged “white shoe” stuff. So the actual particulars of any given case don’t matter.
But I could be wrong- they might really be honest brokers humbly plying their trade. And what do I know - I’m no lawyer.
That’s overly conspiratorial IMO. Hanlon’s Razor dictates that they’re mostly ONLY greedy. And not greedy enough to overthrow the whole system.
That's a fair point: one way to interpret the Moore v. Harper decision is the court standing up for the power of fellow judges.
It wasn't just judicial review in the states that was at state: the power of the governor and the citizens via initiative and referendum could have also been at risk.
I think the conservatives on the Court realize that they're approaching the limit of how much stuff they can pull off before a Democratic Congress strips them of some of their powers.
It's fairly surprising that neither party has tried this already. Even when Republicans held a trifecta, they never legislated to take away the Court's power to uphold abortion rights. (Maybe some of them realized that Roe v Wade was actually good for them electorally.) But it seems as if Roberts et al. have pulled back from the brink a little.
>Maybe some of them realized that Roe v Wade was actually good for them electorally<
Zero doubt. For Republicans, Roe was the political gift that kept on giving.
I think everyone recognizes that once you start stripping the courts of its powers, its hard to stop it. To take issue in this article, how would courts at either the state or federal level respond to North Carolina legislature creating new districts and also stripping the courts of the power to review it?
State legislatures can't restrict the powers of the Supreme Court, but Congress can
The supreme court doesn't review maps for gerrymandering, but they said that state courts can apply the state's constitution to the process. If the legislature removes jurisdiction from the courts per the state's constitution, how would SCOTUS get involved?
Let's be more specific - If in 2011, the PA legislature had passed its gerrymandered map and in the process stripped the courts of its jurisdiction to review the maps - how would a state court handle that? How would SCOTUS handle that?
I don't think there's anything SCOTUS could do consistent with current precedent, since its job is to look for *federal* constitutional violations and they've already decided that gerrymandering isn't one. If they reversed that decision, as they should, any state-level shenanigans wouldn't matter.
I think reversing that decision brings a bunch of issues up that the court doesn't really want to deal with. How do you decide on whether a map is gerrymandered or not is very much in the eye of the beholder at times.
For example - Florida had a partisan map making process in 2022 that enabled Republicans to win 13% more seats of Florida's delegation than deserved (58% of the vote, 20 out of 27 seats won).
Definitely a gerrymander that the court would strike down - yes?
And yet...
California had a "non-partisan commission" create its map and it generated almost the exact reverse bias for Democrats who won 13% more of the California delegation than they did the vote.
California's electoral results bias against Republican's from a non-partisan commission was more impactful than then Texas and Florida's partisan gerrymandering even though the latter have almost a quarter more Representatives (64) than California (52)
+3 Rep for Texas, +3 Reps for Florida, -7 Reps for California.
If SCOTUS reviews California's map, do they accept that geographic dispersion means that its not a gerrymander, so keep the map? Or do they tell California to ignore geography niceties and get extremely granular to create maps that more properly reflect the partisan reflection in the state? If the former, what do they do when Alabama submits a new map that geographically looks good, but lock up a huge number of black voters in one district again? Are they going to try and intuit the intentions of the map makers, or are they going to look at the results?
As I understand it, jurisdiction stripping will only apply to statutory powers, though--if SCOTUS can think of a constitutional reason to flex power that will stick, they'll still have that.
I'm sorry, this just isn't correct. The Court did not reject the independent state legislature theory. What it did was reject some of the more extreme versions of that theory that were advanced by the state, while adopting a version under which the Court claims for itself the power to review state supreme courts' interpretations of state law to determine whether, in the justices' view, those decisions go "too far" and thus amount to usurpations of the power of state legislatures. This is an unprecedented and shocking expansion of the Court's power, and a direct assault on our federal system. Federal courts have no business telling state courts how to interpret state constitutions. Period. Full stop. That is how pretty much everyone thought the federal system worked prior to Scalia and Rehnquist's radical concurrence in Bush v. Gore, and the Court's adoption of that theory (by a majority including three justices who were members of the Bush legal team in that case) is a radical expansion of the Court's role in that system . No one should doubt that the Court will use this new power, which will turn every state-court challenge to state election law into a potential federal case. And if anyone thinks Justice Kavanaugh's promise of "deferential" review of state court decisions will matter when an actual case with real-world consequences comes before the Court, well I've got a bridge to sell.
The real judo move is that the Court managed to pull off this breathtaking power grab while getting showered with media coverage about how restrained and moderate it is being, merely because it rejected even more extreme versions of the theory. This is Justice Roberts' hallmark, and when it works he is really good at it. In this case he even got the three Democratically-appointed justices to sign on, presumably to avoid a more extreme result and to have some influence on the opinion itself.
Milan's piece is really well-researched and written, and mostly spot-on. But it pains me to see Slow Boring add to the general media misperception of the significance of this case.
I mean...SCOTUS is always going to be capable of making a power grab whenever they want if they have the votes for it, and since they are very intelligent and talented writers, they can make up an opinion that will seemingly not contradict previous precedent. They didn't do so in this case, and that's cause for celebration.
And as to "Federal courts have no business telling state courts how to interpret state constitutions.", they very much should if the state constitution does something that is deemed to violate the federal constitution. Obviously SCOTUS could wield their judicial review in this regard for evil, but they can also do so for good. In the context of elections, Reynolds v. Sims is an obvious important case.
The most important rule of online progressivism is that you are NEVER allowed to be happy or relieved. Not about anything, not ever.
Really, it's online [insert political ideology of your choice]. And we can even omit the online part too, activists gonna activist.
I think of it more as a fear dopamine bump, like your uncle gets from watching Fox News. You get addicted to the fear; you can't let go.
I'm not particularly progressive nor an activist. Just care about federalism and constitutional law.
Of course federal courts can strike down state laws that violate the federal constitution. But the idea that that a state court violates the federal constitution by interpreting a state law in a way I don't like is really quite a claim.
That boat sailed along time ago in Reynolds v. Sims.
No, that's been the law forever. There's even a Wikipedia page (see last paragraph of https://en.wikipedia.org/wiki/Adequate_and_independent_state_ground). All the Court did was reaffirm that general concept, without delving into how that would be specifically applied on districting, which is an inherently complex question.
The us is one single country, not a confederacy. In my irreverent opinion the fact that each state has its own rules for *federal* elections is a stupid archaism with chaotic potential (cf 2020 elections). It would do the us much good to standardize all of this on the federal level as *democrats* tried to do.
I'm not a lawyer so I can't say for sure if that's true. But it seems like there have been plenty of issues relating to state constitutions that went to the supreme court? Or were all of those situations in which the federal constitution preempted the state? Any constitutional lawyers around?
It's clear the Supreme Court can overrule a state court decision to the extent its substance conflicts with something in the federal constitution. For example, if a state court were to interpret a state constitution to say that only white people can vote, the Court would invalidate that decision because even if it is a correct interpretation of what the state constitution says, it is clearly contrary to the federal Equal Protection Clause.
What's new here is the Court claiming the power to overrule a state court decision solely because it thinks state court wrongly interpreted *state* law. For example, suppose the North Carolina Supreme Court were to say the fair elections clause of the North Carolina constitution prohibits gerrymandering, and strike down a district map passed by the North Carolina legislature as an illegal gerrymander. Under Moore, the federal Supreme Court now claims the power to overrule that case because it doesn't agree the North Carolina Constitution should be read to prohibit gerrymandering. that. The conceit is that the Court would decide that in its opinion, that reading of the state constitution "goes too far" from past North Carolina cases, and therefore it was the state supreme court that made the redistricting decision rather than the legislature, and the federal Constitution gives that power to the latter.
It's a big deal legally because under our system of federalism, the proper interpretation of state law has always been considered a matter solely for state courts, who have been free to develop their own jurisprudence and have the final say on what state constitutional provisions do and don't require. No one has thought the federal courts had the right to step in and accuse state courts of legislating from the bench. Now the Court says it can do that, which is a significant erosion of state sovereignty. It's a great example of how some partisans are all in favor of principles like federalism, until they produce results they don't like or limit the power of government institutions they control.
Interesting to see such a deep-dive (nicely done!) on constitutional law, even though Matt has said that he thinks constitutional law is “basically fake”. Milan, I take it you disagree with your boss on this?
It can be worth understanding the mechanics of an important system, even if it is a constructed one.
Agree. I think the world would also be worse if jurists embraced the idea that constitutional law is fake.
How precisely would outcomes differ from the present?
Which is to say, I don’t actually believe they haven’t embraced that exact understanding.
I think that some judges (Roberts, for example) believe that what they do is different from the raw exercise of power and I think that tempers their decisions at the margin.
It's as fake as philosophy is. And yes they all know that.
Given Matt's disdain for the federal judiciary, I'm glad you're here as a backup to give us an appropriate forum to talk about it!
What do you mean by "understanding the mechanics" of an important system? Explaining why one thinks individual justices ruled as they did? Presenting one's own beliefs of what the constitution is saying and grading the justices on that point of view? Or, to be less pejorative, taking actual Supreme Court decisions as a given and then exploring the implications of those acts on the rest of our system of governance?
This “theory” was bogus. Scotus made sure to clarify that and get it firmly off the table. So why are we dedicating space for it again with a recycled article (relevant at its original publication but blissfully no longer relevant at all)?
To explain the theory to people who might not have been previously aware of its details
Thomas issued a dissent. This issue is still alive and we shouldn’t fool ourselves into believing that there isn’t a network of corrupt radicals who will feed off his opinion like vampires at a blood bank.
https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf
Is this like Democrats celebrating RBG for her notably strident dissents (which, with an extra $3, can get you a coffee at Starbucks)?
This is too important to the authoritarian right for them to let go. Once the commotion dies down the right wing intellectual cover machine will restart their messaging on this. If Trump gets back in office it will absolutely come back after a ground swell of “akcshully law” discussions.
I would expect this and voting rights to both come back before the court in a few years.
Feels like doomerism wearing a political mask, where the most cynical view is axiomatically taken as the wisest.
I hope that sort of viewpoint does not take over the SB comments, as it has driven me away from once-sensible places like TPM.
I’m not spinning out about this and I don’t think anyone else should be either. I think that’s a key part of doomerism.
I’m simply saying that the ISL theory has some serious supporters at both the state and federal level. It was not unanimously shot down by the Supreme Court.
Even a small chance of this theory coming back should be taken seriously.
Yes, we should be vigilant, but we should also recognize that this could be the high-water mark for this particular malignancy. Conservative legal thinking (put scare quotes around as many of those words as you like) is not necessarily a ratchet.
We ate a very large and beautiful and strong dinner yesterday. It satisfied your hunger and mine (a 9-0-flavored dessert would have been nice). We will still need to eat tomorrow.
The risk arises not from the power of the dissent, but from the possibility that a President DeSantis or Trump gets to be in the big chair when the Alito, Thomas, and most critically Sotomayor seats become vacant. There's a fair chance that either of those guys would nominate the furthest-right appeals court judges in the country: folks well to the right of Kavanaugh or Barrett.
That’s why sotomayor must retire asap.
Both Sotomayor and Kagan should retire if they care for their ideology best being continued, but Sotomayor more so given her past health problems.
Will it, though?
As I said on Tuesday: “MI and MN are under Democratic trifecta governments, PA is now split, and courts are hurting Democratic attempts to gerrymander NY, NJ, MD, WA, and OR more than they are Republican attempts to do so in FL, TN, MO... means there's just no reason to jump on ISLT from the perspective of advancing GOP prospects at the federal level.
There's a lot more to be lost from freeing NY, WA, OR, NJ, and the nonpartisan commission states (CA, CO, MI) to screw over the GOP as IL does than there is in maybe letting WI and TX squeeze an extra dribble of seats for them.”
The Democrats could conceivably engineer congressional maps from NY, CA, NJ, MD, and IL that would send fewer than 10 GOP representatives combined.
The GOP states which can do something similar have already.
I don’t think ignoring the fact it’s just bad legal theory is a good idea here. I expect a lot of the intellectual cover for this theory will continue to come from the “is it really that bad though?” school of thought.
Is a philosopher king really so bad? What if he’s really good?
This, 100% this.
I agree the authoritarian right won't let it go. But the decision was 6-3. This decision has bought us valuable time.
I agree but I’m also not the only one who believes we should be cautious here.
https://www.salon.com/2023/06/27/moore-v-harper-law-professors-warn-scotus-just-set-itself-up-to-meddle-in-future-elections/
the dissent itself is worthless but I guess the lesson would be that GOP wouldn't need 5 new judges to get ISL through, only 2 or 3. Which tbh isn't surprising at all (I thought the ruling was 50/50 to go one way or the other) except for the "the law is a real thing" people
No. “ISL” has close to zero honest supporters. It was an excuse for authoritarians trying to destroy democracy. There is no doubt that with this means out they will try others: legal, pseudo-legal and blatantly illegal. That’s because the authoritarian right is a major force in the country and *that’s* the threat. Being hyper focused one failed attempt, one method of attack proven futile, misses the forest for the trees (or rather for one tree that was just chopped down quite effectively ).
I’m not hyper focused on this issue. I’m essentially putting it on a list of things to watch out for when it comes to corrupt legal theory garbage in the future. Vigilance isn’t doomerism, caution isn’t defeatism. I’m aware some corners of the internet may be engaged in all sorts of panic about “woulda, coulda, shoulda” but that’s not what’s happening in this thread imo.
It’s not that different from qanon at this point. It’s not that it can’t be used dangerously, but it’s a waste of time giving it the time of day pretending it’s a serious idea. As you say, it’s garbage so why are we bothering getting into its weeds?
This specific article today is about the ISLT. That’s why I’m putting in my two cents about the value of vigilance here. I’m not hijacking a thread about something else because I’m panicked about a pet issue.
I’m a reasonable person! *discreetly pushes pile of various video game collectibles under my desk and out of sight*
My criticism is the choice of recycling the article rather than wiring about something else today, it’s not of you :)
I was cautiously pessimistic on the worries of ISL spreading further, now I've shifted to cautiously optimistic. It does not seem like Kavanaugh and Barrett want to open this can of worms, even if Kavanaugh explicitly but hypothetically left the door open in his concurrence. It'll never be dead but now I think it is in severe dormancy.
Maybe Matt is planning something for tomorrow that is taking him longer than expected to iron out?
Hopefully. Or maybe he just found an opportunity to get one post out of his hands and give himself slightly bigger margins. To be fair his productivity is insane, esp considering the high average quality of his posts.
Tomorrow is Mailbag Day.
Oh right. I don’t recall if he’s ever explicitly stated that Monday is his mailbag call and Friday is his mailbag answer, but people in the comments eventually made clear to me that there was some sort of weekly pattern, and it seems to be that.
He mentioned something that I’ve already forgotten on Twitter that he planned for today…
https://www.slowboring.com/p/independent-state-legislature-theory-471/comment/17896986
I'm very glad from a results oriented perspective at the case's ruling but I also think the dissent is right and that the case was moot at this point. I was also amused by Thomas poking at Roberts by quoting Roberts dissent in Uzuegbunam, which I also thought was moot but if there was a scale of mootness, less moot than this one.
More ridicule and less serious discussion are needed about ridiculous ideas and unserious people. Independent State Legislature Theory is a theory like the fiction of Ayn Rand is a theory: convincing to a subset of gullible and sassy young adults, who’re reading their most sophisticated work to date, untethered by experience or other form of clue how the real world actually works.
I think you need to read that Wikipedia page more carefully.
Groff v. DeJoy was unanimously vacated and remanded. Looks like a punt to me at very first glance that could come back up later, but there's a much bigger case that just came out that I'm going to focus on instead...
https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf
Perhaps some of the constitutional law experts out there can help me with my confusion: why should we care what no doubt brilliant constitutional scholars like the Amar brothers say?
The quotes from their work that Milan offers seem compelling to me on the ISL issue. But so what? What difference would that have made had the Supreme Court majority *not* agreed with them, but went off the deep end and blessed the ISL argument? You can do the most incisive constitutional analysis in the world but at the end of the day the Constitution is what five-plus justices say it is. Or is the whole point of constitutional analysis merely to be lobbying those justices?
How would the world be different if there were no scholars like the Amars?
Legal doctrines are fleshed out in law reviews, amicus briefs, and lower court opinions before going before SCOTUS. SCOTUS then has the final say or issues a narrow ruling that lower courts then have to use to make new rulings and the doctrine develops further before going back to SCOTUS on a different case. It is a cycle, that has developed from English common law tradition and the structure of the federal judiciary.
So it's lobbying the nine people in black robes, then?
Kind of. It might be better to think of the process as a nationwide, multi-year brainstorming session amongst legal nerds. But the goal is to influence the opinion of the Supreme Court.
This was an interesting article and I'm glad the ISL theory got shot down. However, it continues to lead me to ask what should be the governing principal for courts (both federal and state) to use their power?
Since Dobbs there has been this strong push from progressives to undermine the legitimacy of SCOTUS acting to overturn legislative action. Ezra Klein had someone in his podcast arguing that Congress or the President may need to ignore some of the courts rulings, or use legislation to strip jurisdiction from the court. Matt has been very critical of the court's power as well and there are plenty of others who have aired similar ideas. And yet, having state or federal courts step in and overrule legislatures on these issues is still demanded in the name of fairness. But who gets to decide what is fair? Its quite possible that Republicans could get more votes for the house than Democrats, but lose their majority because how diffuse they are in states like Massachusetts and California. Is that fair, or should the court step in and redraw maps? To repeat, what is the underlying power you grant to the court even when it's held by conservatives?
What’s true of California and Massachusetts is also largely true of a big swathe of the South and Plains states.
Absent truly extreme wins on the gerrymandering front, popular vote wins have historically translated into House majorities, while retaining the geographic and individualized representation that sets us apart from PR systems.
Now I’m fine with a PR system, but most folks don’t want one, so no sense worrying about it too much.