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'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:
I don't have anything insightful to say about the ruling itself, but it would be cool if Republicans would try to just win more votes rather than incorrectly assuming that they can't.
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.
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.
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?
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)?
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?
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?
Independent state legislature theory, explained
Congratulations again, Milan, for your amazing victory singlehandedly convincing SCOTUS to rule correctly! 😉
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.
And here's the affirmative action opinion:
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
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
I don't have anything insightful to say about the ruling itself, but it would be cool if Republicans would try to just win more votes rather than incorrectly assuming that they can't.
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
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.
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.
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?
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)?
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?
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?