Here are some things that struck me listening to the argument today.
1) What will the RKB triumvirate do? As Rick Hasen noted in his post, the question is which way will Roberts, Kavanaugh, and Barrett go. My guess is that Roberts goes with the conservatives and Kavanaugh and Barrett join Kagan for a middle ground. Though Roberts did not express strong support for the ISL position, compared to Gorsuch or Alito, he seemed to be very open to imposing meaningful limits on state courts. His opening exchange with Verrilli I think is indicative.
He seems to share Gorsuch’s distrust of state courts as against state legislatures (what if courts adopt the efficiency gap, or they delegate broad authority to special masters). And he attempted to walk back or reinterpret his statements in Rucho. Moreover, he seems to believe that there is a question of federal power at stake here. So, I expect him to go with the conservatives and then the question is how high of a standard will they impose on state courts.
By contrast, to the extent oral argument questions are indicative of anything, Kavanaugh and Barrett seemed willing to give state courts a fair amount of deference in interpreting state statutes or constitutions. Though they are willing to buy some version of ISL–that is, they believe that the Elections Clause imposes some judicially-manageable limits on state courts–they did not indicate a belief that the standard ought to be stringent. They seem to want the standard to be clear.
It’s foolish to guess what these two will do, but their questions seemed more consistent with the position of the respondents than petitioners. Barrett seemed skeptical that the standards articulated by petitioners were workable (e.g., substance v. procedure distinction, novelty, egregious departure) and David Thompson, the advocate for petitioners, did not have good answers here. Kavanaugh’s questions for Thompson were also particularly trenchant and I don’t think Thompson’s answers were persuasive.
2) Constitutional basis for the federal standard: Due Process v. Elections Clause. Rick Hasen argues that the Court can use the Due Process Clause to find the federal standard. I don’t think clause-switching makes a difference here. Whether the standard comes from the Elections Clause, Due Process Clause or some other part of the Constitution, the Court will have to articulate it and defend it. Moreover, I have a hard time seeing a majority splitting the violation and the standard. That is, if the Court thinks that the NC Supreme Court’s reasoning violate the Elections Clause, I’d be surprised if they then looked to Due Process to articulate the standard.
3) State Statute v. State Constitution. One theme of the argument was whether state constitutions and state statutes ought to be treated differently. Rick Pildes has written a thoughtful post on this. It was one point of agreement between Thompson and Neal Katyal (arguing for respondents). Again hard to tell from oral argument, but It’s not clear to me that any Justice other than Jackson was willing to buy that distinction and Kagan seemed to be very skeptical. Verrilli and Prelogar argued that the distinction not was theoretically significant but might play out differently in application. I think Rick Pildes is obviously correct on the distinction between general principles and specific guidance. But it’s not clear to me that one has to take the categorical approach that Katyal took. I think that argument was a distraction for the respondents.
4) Are both sides articulating the same standard? The Chief asked a question of Katyal that I don’t think received a lot of attention. He asked whether Katyal and Thompson were both articulating the same standard. He quoted from Katyal’s brief saying that the standard can be a significant departure from state law (statute/constitution) and compared that to Thompson’s argument that the standard can be egregious departure from state law. There’s an argument to be made that petitioner’s standard (novelty or egregious departure) is in fact sky high and not that different from what respondents would want. And that even under petitioners’ standard, respondents should win.
5) The Solicitor General, Elizabeth Prelogar continues to be amazing in oral arguments.
Taegan Goddard from Politicalwire. From the article:
Rep. Jamie Raskin (D-MD) said he believes Attorney General Merrick Garland knows “what’s at stake here” when it comes to a possible indictment of former President Donald Trump from the Department of Justice, CNN reports.
Said Raskin: “One of the conventions that was crushed during the Trump administration was respect by politicians for the independence of the law enforcement function.”
Jamie Gangel reports for CNN.
Blake Hounshell has this story for the NY Times on a new report by Protect Democracy that provides advice to journalists on how to cover democratic backsliding.
Vik Amar has this piece for Verdict. From the article:
As I noted last week and major news outlets have also reported, the United States Supreme Court is poised next week to consider taking up the North Carolina partisan-gerrymandering case involving the so-called Independent-State- Legislature (ISL) theory. As I have explained at length, the theory—which holds that elected state legislatures, when regulating federal elections under Articles I and II, are free from state-court enforcement of state constitutional limits on legislative power—is belied by the well-understood meaning of “state legislatures” in 1787, the grammar and syntax of Articles I and II themselves, the clear actions by states right before and right after the founding, the enactments of state legislatures themselves over the course of American electoral history, and unbroken Court precedent from the early 1900s through the last decade. But so far, the bulk of the discussion of the theory’s merits by any of the Justices has come from conservative members of the Court who in the past few years seem open to embracing it. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch in particular have been adept at using the device of the dissental—a term melding “dissent” and “denial” to describe the practice of noting and explaining a dissent from a denial of emergency relief or a denial of certiorari—to lay out why they (wrongly) think that acceptance of ISL notions is required to make meaningful the language in the Constitution. (See, e.g., here and here.)
Emma Brown of the Washington Post has this article on Ginni Thomas. From the article:
Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, pressed 29 Republican state lawmakers in Arizona — 27 more than previously known — to set aside Joe Biden’s popular vote victory and “choose” presidential electors, according to emails obtained by The Washington Post.
Cardozo Law Professor Kate Shaw in the Atlantic on the Electoral College. From the article:
John Eastman. Rudy Giuliani. Donald Trump himself.
These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.
Put plainly, for a candidate determined to win at all costs, the Electoral College was central to a postelection strategy designed to convert loss into victory. Last night’s opening hearings of the January 6 committee made clear that Trump and his advisers were well aware no good-faith legal basis existed to dispute the election’s results. In a nationwide popular vote, a deficit of 7 million votes would have been impossible to challenge using ostensibly lawful means; the fact of the Electoral College meant that flipping a few close states, or coercing the vice president into throwing out those states’ votes, would have been enough to change the election’s outcome.
Congrats Sam! Coverage of Sam’s latest accomplishment here.
Bruce F. Freed and Karl J. Sandstrom have this post on the Center For Political Accountability’s report on corporations and democratic crisis. From the post:
“Companies today face a moment of reckoning for their political spending. The crisis that confronts U.S. democracy and the inability to address a broad range of issues demanding public action from climate change to women’s reproductive rights, voting and guns has put front and center the role of company political spending in contributing to the breakdown. It has also underscored the need for companies to take a hard look at the consequences of their spending, the immediate and broad risks that it poses and whether or how they should engage in political spending.
The Center for Political Accountability addressed these fundamental issues in a recently issued report on corporations, political spending and democracy entitled Practical Stake. The title was deliberately chosen to emphasize the stake that companies have in a healthy, well-functioning democracy and contrast that with the role their political money has played in enabling the attack on democracy and creating the climate of intimidation that presents a grave threat. The report concluded by laying out what businesses should do to protect themselves and democracy.”
Luke Broadwater has this story for the NY Times. From the article:
The House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol opened a landmark set of hearings on Thursday by showing video of aide after aide to former President Donald J. Trump testifying that his claims of a stolen election were false, as the panel laid out in meticulous detail the extent of the former president’s efforts to keep himself in office.
Over about two hours, the panel offered new information about what it characterized as an attempted coup orchestrated by Mr. Trump that culminated in the deadly assault on the Capitol. The panel’s leaders revealed that investigators heard testimony that Mr. Trump endorsed the hanging of his own vice president as a mob of his supporters descended on Congress. They also said they had evidence that members of Mr. Trump’s cabinet discussed invoking the 25th Amendment to remove him from office.
The Fifth Circuit has issued a temporary stay of the district court opinion in Robinson v. Ardoin. Here is a short story by Bloomberg reporter Meghashyam Mali. This development is not surprising. The question for me is whether the plaintiffs will seek Supreme Court review if the Fifth Circuit reverses the District Court’s opinion, which at this point seems more probable than not.
Natalie Allison for Politico. From the article:
“Colorado isn’t viewed as a prime Republican Senate pickup opportunity this fall — not yet at least.
In the hopes of keeping it that way, Democrats are aggressively advancing the campaign of a hardline MAGA Senate candidate in a last-ditch effort to elevate him over a moderateRepublican who is viewed as a more serious threat to Democratic Sen. Michael Bennet.”
John Myers has this piece in the LA Times. From the article:
“The promises made by supporters of the top-two primary largely fell into one of three categories: increased participation by the state’s growing number of independent voters, a decrease in the number of ultrapartisans elected to office and more competitive races for seats in the California Legislature and Congress.
“In order to change government we need to change the kind of people we send to the Capitol to represent us,” backers wrote in the 2010 voter guide in favor of Proposition 14.
But the results from a decade of primary elections seem thin — especially when considering the promise that the election rules would inspire more participation by California’s independent voters, those registered as having “no party preference.” Under the traditional “closed primary” system, political parties used to often exclude independent voters from their state and congressional primaries. In California races, Proposition 14 made a voter’s affiliation irrelevant.
And yet, independent voters haven’t rushed in to cast ballots.”
On the second promise — an expectation that the top-two primary would boost moderate, centrist candidates — it’s unclear how many voters would even want that outcome in the current political environment, much less whether they would know how to make it happen.
While Proposition 14 was the product of late-night deal making in Sacramento to pass a state budget in 2009, Peace and others had drafted versions of the new primary rules as far back as 2006, a political period in which then-Gov. Arnold Schwarzenegger promised the dawn of a “post-partisan” era of politics that valued pragmatism and common ground.
Nor has the top-two primary changed the fundamental way that candidates win elections.
Should the Sierra Nevada state Senate race end up with two Democrats — labor leader Tim Robertson and school administrator Marie Alvarado-Gil — it’s likely that most of the region’s Republicans will skip the race in November. Same-party runoffs on the fall ballot have not produced elections in which candidates build broad coalitions. Instead, the campaigns routinely look to elevate minor differences between the two hopefuls, a strategy frequently financed by powerful niche interest groups.
This is a few days old but worth highlighting. In the New Yorker by Sue Halpern (@suehalpernvt). From the piece:
“The redistricting process may seem arcane and academic, even negligible, but it is a foundation of representative democracy. “There are all these voter-suppression laws being passed around the country, but in a lot of ways those are like a death by a thousand cuts that make it harder in incremental ways to vote,” Michael Li, a lawyer at the Brennan Center for Justice, told me. “But gerrymandering is a little bit like a nuclear bomb that levels everything in its place. Because it means that even if you jump through all the hurdles—the I.D. requirements, the elimination of drop boxes, the shortening of voting hours—and are able to vote, your vote doesn’t matter.” Once the basic tenets of democracy—one person, one vote in a government of the people—are subverted, other devolutions follow. This is why Congress is so often out of step with public opinion on issues like gun control and immigration reform. It is what we are now seeing with the curtailing of abortion rights: a group of conservative Supreme Court Justices, three of whom were appointed by a President who was not elected by a popular majority, are poised to overthrow a precedent favored by nearly seventy per cent of the country. And, once they do, conservative legislators in states across the country will be positioned to impose their own deeply unpopular beliefs on their constituents.”