The abortion ruling came amid a string of high-profile decisions, including ones expanding gun rights and curtailing the Environmental Protection Agency’s ability to curb carbon emissions. On Thursday, the court agreed to consider whether state lawmakers have the sole authority to determine how federal elections are run and where congressional district lines go.
Many of the recent rulings issued — but especially the overturning of Roe — elated conservatives and enraged liberals, sparking protests and condemnation from lawmakers, celebrities, corporations and civic groups who said they worried the court was becoming another political branch of government. After the court spent decades expanding the rights of many Americans, including by allowing same-sex marriage and protecting voting rights, many were stunned to see a right rolled back.
A historical case for court packing and jurisdiction stripping, from Politico Magazine:
Acting in concert, the president and Congress may shape both the size and purview of the court. They can declare individual legislative measures or entire topics beyond their scope of review. It’s happened before, notably in 1868, when Congress passed legislation stripping the Supreme Court of its jurisdiction over cases related to federal writs of habeas corpus. In the majority decision, Chief Justice Salmon P. Chase acknowledged that the court’s jurisdiction was subject to congressional limitation. Subsequent justices, over the past century, have acknowledged the same.
That’s the brilliance of checks and balances. In the same way that Congress or the Supreme Court can rein in a renegade president, as was the case during Watergate, the president and Congress can place checks on an otherwise unconstrained court, if they believe the justices have exceeded their mandate.
I have written this piece for Slate on today’s cert grant in Moore v. Harper.
The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution, Article I, Section 4 as to congressional elections and Article II as to presidential elections give state “legislatures” the power to set certain rules (in the Art. I, section 4 context, subject to congressional override). The Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. See Smiley v. Holm. As recently as 2015, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. See Arizona Independent Redistricting Commission v. Arizona Legislature.
But that latter case was 5-4 with a strong dissent by Chief Justice Roberts, who believed the legislature could not be cut out of the process. Most of the Justices in the majority in that case are now off the Court.
There’s a more radical version of the idea that the Legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.
Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in Congressional districts. That state court is majority-Democrat and the NC General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.
Pause on that for a moment: the theory in its extreme is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.
And this theory might not just restrain state supreme courts: it can also potentially restrain state and local agencies and governors implementing rules for running elections.
And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.
Now there may be many responses to such arguments, including arguments like laches—you can’t start raising these arguments after an election when things don’t go your way.
This was in fact the theory that Trump allies tried to raise after the PA Supreme Court extended the time to receive absentee ballots in the 2020 elections because of covid, relying on voter protective provisions in the State constitution. Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Alito at the time (Circuit Justice for the Third Circuit) put the counting of such ballots on hold. There were about 10,000 such ballots, far fewer than the 80,000 vote victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.
Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.
There are also strong originalist arguments that might persuade some of the Justices not to adopt such a radical reading of these constitutional provisions.
But buckle up! An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great mischief.
[This post has been updated]
Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it.”
This term surely proves the point. The “normal” mode of textual analysis we see from Justices like Justice Gorsuch begin with the words of a statute, often read in the context of surrounding text, looking to dictionaries and other tools of ordinary meaning. And the approach avoids relying on legislative history as unreliable or even unconstitutional. The larger debate over textualism and the flaws in it are well covered in the late Judge Bob Katzmann’s excellent book, “Judging Statutes.”
But put aside that debate for today and take textualism on its own terms. In today’s EPA case, like the Supreme Court’s earlier ruling saying OSHA had no authority to require covid vaccines in larger workplaces, show that the conservative Justices are fair weathered textualists. In both cases, they don’t turn to dictionaries to figure out if the relevant agency has the authority from Congress to take on key issues in its area (EPA to deal with climate change threats from greenhouse gases and in OSHA the authority to regulate workplace safety).
Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety. How do to so? Textualists have adopted certain “canons” or rules of thumb to decide cases. Many of these canons are about how to read punctuation and grammar (like the last antecedent rule). But there are also “substantive canons” that put a thumb on the scale when it comes to interpreting cases. A rule for example that says to read criminal statutes leniently to favor criminal defendants is one example, because of constitutional protections for criminal defendants. Justice Scalia, who claimed to be an avid textualist, said that such canons cause whole a lot of trouble for an honest textualist. (I wrote a lot about this in a chapter in my book on Justice Scalia, The Justice of Contradictions.)
Today, as in the OSHA case, the Court pulls a rabbit out of a hat using what it now calls the “major questions doctrine.” It says that on big issues, the presumption is—even if Congress’s language is broad and wide as in these two cases—that Congress did NOT delegate the power to the agency to regulate a big issue. Congress has to be really clear and specific — again, even if as in the EPA and OSHA cases, there is a broad general grant of authority.
Why this substantive canon? It comes from the value judgments of the conservative Justices and from nowhere else. These justices are skeptical of broad administrative power, and of executive power generally. These justices know that in a closely divided Congress, its rulings like this will stymie legislative action on issues like climate change or preventing the spread of Covid. And they are fine with that.
You don’t pull a rabbit out of a hat as a judge unless it gets you somewhere. And this gets the justices to the ideological position they like. So much for honest textualism.
In the first post I pointed out that unwritten understandings play a central role in attempting to faithfully interpret constitutional text, which was followed by the second post where I argued that this leads to a process where constitutional meaning is constructed over time, rather than simply being draw out from the text itself. In this last post, I highlight the fact that we must inescapably make judgments about how to order, weigh, and understand different textual provisions and values as part of a constitutional whole.
There is no getting around this. There is no safe space that allows us to avoid making constitutional judgments that are not determined by text, just the reasons we give for making them. When should courts defer to democratic legislation, and when should they protect rights against democratic legislation? The text does not answer these question for us.
In a recent voting rights case, Justice Ginsburg argued that given the history of discriminatory voting procedures—particularly against blacks in many southern states—the Court ought to give wide latitude to Congress in order to protect minority voting rights. In doing so, she urged the Court to defer to Congress’s information gathering and past record in eliminating race-based discrimination in voting, which had historically plagued America’s democratic process.
The Court, in an opinion by Chief Justice Roberts, argued that on the basis of “principles of federalism,” the Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50-plus years ago, the Congress should not treat states differently in this regard without a recent showing of discriminatory voting practices on the part of particular states. Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, but argued it was unconstitutional to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.
Like Justice Ginsburg’s judgment, the chief justice’s judgment was rooted in how he constructed relations among the states and national government, voting rights, and the Court’s role in the constitutional scheme. Neither simply turned to constitutional text. Rather, based on different textual provisions, an examination of history, and weighing constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave certain constitutional principles. Justice Ginsburg prioritized voting rights against a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting.
It was these judgements about how to order different part of the Constitution that informed their understanding of text. Textual readings we take for granted are often built up as part of an historical process and are not simple givens. Such constructions are a sort of political theory, guiding us to make sense of text, offering standards to shape our judgment in applying the written Constitution to particular cases. At the most foundational level, how we view the character and nature of the Constitution—what we imagine the Constitution to be—will shape our reading of its text.
There is no getting around these “unwritten” understandings. We should acknowledge them, justifying why we think they make the best sense of our written Constitution as part of our ongoing project of constitutional self-government.
In the first post, I pointed to the unwritten ideas that constitutional interpretation necessarily rests on, noting that this point is obscured by textualist and originalist jurists. In making this point, The (Un)Written Constitution seeks to illustrate that most of our constitutional disputes depend on constitutional construction. We are not simply drawing out the latent meaning of text. Rather, we are engaged in a process of constructing constitutional meaning based on our ideas about the logic and nature of the Constitution and how it ought to apply to a never-ending series of questions.
Consider the First Amendment’s prohibition against “abridging the freedom of speech, or of the press.” What does that freedom entail? Does it allow an opposition party or private citizen to criticize the sitting government? This question was the subject of heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.
At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that a political minority must “surrender up their judgment” once a government was selected, and that “private opinion must give way to public judgment, or there must be the end of government.” In contrast, James Madison argued that interpretations like Chase’s prohibited the “right of freely examining public characters and measures, and of free communication among the people … which has ever been justly deemed the only effectual guardian of every other right.” The disagreement between Chase and Madison turned on how they understood the nature of republican government, not on the text of the Constitution.
A similar debate occurred around “the executive power” in Article II. Did the president have the power to remove executive branch officers who had required Senate approval to be appointed in the first place? This famous debate of 1789 yielded a number of positions, all of which turned on ideas about the separation of powers and the nature and logic of the different branches of government, not simply on the text of the Constitution. This debate persists to the present day.
Our understanding of republican government shaped how we interpret freedom of speech just as our understanding of the separation of powers shaped how we read the executive power and the question of presidential removal. These answers are not obvious from the plain text of the Constitution, but constructed from unwritten understandings about concepts like separation of powers.
Originalists insist that we should read the text as it was understood by those who framed and ratified it. They turn to history and linguistic conventions from the period under investigation to retrieve the “original public meaning” of the Constitution’s words. What would constitutional text have meant to an ordinary reader at the time of the text’s ratification? As Justice Amy Coney Barrett has argued, the original public meaning of the Constitution’s text, “and it alone,” is law. Yet this argument depends on unwritten ideas about the nature of the Constitution—on a disputed theory of what the Constitution is—not on the text. It may well be a powerful answer to guide our readings of text, but it is very much a construction of that text.
As we prepare for the Supreme Court to overturn Roe v. Wade, the country is once again debating whether unenumerated rights are constitutionally protected. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case, insists that a woman’s right to choose to terminate her pregnancy is not found in the text of the Constitution. It’s true the Constitution does not explicitly enumerate such a right. But the Constitution also says nothing about Congress delegating its power, and yet Alito is certain it prohibits Congress from delegating “major questions” to administrative agencies.
As Justice Sonia Sotomayor candidly put it during oral argument in the Dobbs case: “There’s so much that’s not in the Constitution.” How we read and interpret constitutional text largely rests on our unwritten ideas about the Constitution, and our most pressing constitutional debates are largely about what unwritten understandings and principles should guide our reading of text. This is the central claim of my The (Un)Written Constitution recently published by Oxford University Press. I’m grateful to Rick Hasen for inviting me to write about it on the Election Law Blog.
There’s nothing unusual about relying on unwritten understandings to bring constitutional text to life. Yet this point is obscured by the most prominent judicial advocates of textualism and originalism, as well as their political champions (unlike originalist scholarship where unwritten understandings are often an important feature of constitutional analysis). The late Justice Antonin Scalia relished pointing to departures from constitutional text as departures from the Constitution, even while his jurisprudence relied on unwritten understandings. Similarly, Republican politicians tend to insist that we are either following the text of the Constitution or following our policy preferences. We persistently see this trope of disciplining judicial discretion by relying on text at Supreme Court confirmation hearings.
The (Un)Written Constitution seeks to dispel this mythology. The book is written for a general audience as originalist and textualist jurists have come to dominate the bench, and their constitutional understandings have become an important feature of our politics. But it should be of interest to scholars as well. Yet The (Un)Written Constitution draws from judicial opinions and political practices rather than scholarly disquisition. It focuses largely on Supreme Court opinions and the arguments of the justices to make visible the unwritten ideas that drive textual interpretation. I begin with two jurisprudential giants of the second half of the twentieth century, Justices Hugo Black and Antonin Scalia, who helped bring textualism and originalism to the bench, powerfully shaping our current debates about constitutional interpretation.
Beyond Supreme Court opinions, the book turns to prominent political figures such as James Madison, who had a hand in working out constitutional meaning based on sparse text. In explicating the Constitution, these judicial and political opinions offer us a great debate on the political theory that underlies the written Constitution. Across a range of constitutional disputes—from the separation of powers to the meaning of freedom of speech, from partisan gerrymandering to the reach and limits of Congress’s power to regulate interstate commerce, from racial discrimination to same-sex marriage—The (Un)Written Constitution illuminates the unwritten understandings that inform our disputes about the written Constitution.
Yet The (Un)Written Constitution does not defend a particular theory of constitutional interpretation; it seeks to illustrate that allapproaches to constitutional interpretation rest on unwritten ideas. This is an inescapable feature of our written Constitution, not a defect or a bug. What approach is most faithful to the Constitution? I leave that judgment to the reader.
and more likely someone is writing a dissent from denial.
I have more analysis in this twitter thread.
I think it is more likely they’ll take the case out of Pennsylvania.
Anthony Gaughan has posted this draft on SSRN (Notre Dame Journal of Law, Ethics and Public Policy). Here is the abstract:
This article examines the role of partisanship in Supreme Court election law rulings. To that end, it surveys the major election law cases involving constitutional issues over the past century. This article identifies three distinct chronological phases in the Court’s election law jurisprudence: (1) 1898 to 2000; (2) 2000 to 2010; and (3) 2011 to 2022.
This article makes five main points.
First, it finds remarkably little evidence of partisan influence in Supreme Court election law cases in the 20th century. Justices appointed by Republican presidents routinely joined justices appointed by Democratic presidents in majority and concurring opinions. Only rarely did the Court issue election law rulings with majorities and concurrences formed exclusively of justices appointed by presidents of the same party.
Second, this article contends that the Court’s bipartisan approach to election law cases ended in the 21st century. In the decades since the 2000 Bush v. Gore decision, election law cases have divided the justices along partisan lines to an unprecedented degree.
Third, this article asserts that the ideological realignment of the parties only partially explains the Court’s recent voting patterns in election law cases. The emphasis on judicial ideological conformity with partisan norms inevitably resulted in a significant degree of judicial polarization in election law cases. But in the 20th century, conservative and liberal justices sometimes agreed on major election law cases. Only in the 2000s did conservative and progressive justices chart dramatically different courses in major election law cases. Ideological realignment alone therefore does not fully explain the Court’s partisan polarization.
Fourth, this article contends that any account of the Supreme Court’s partisan divide must also take into consideration the 21st century’s unusually close presidential elections, a development that unfortunately coincided with ideologically polarized judicial appointments. As election law rulings soared in importance, and as presidential candidates committed to basing their judicial appointments on ideology, the justices’ partisan affiliations became disconcertingly accurate predictors of their positions in the most important election law cases.
This article concludes that the justices’ polarized approach to election law cases undermines the Court’s reputation as a neutral arbiter of the Constitution. Indeed, with conservatives holding a narrow 5-4 majority for much of the 2000s and 2010s, one could reasonably argue that the justices—progressive and conservative alike—had a clear conflict of interest when it came to election law cases. Accordingly, this article contends that it is imperative that the justices on both ends of the ideological spectrum make a much greater effort to find common ground in election law cases.
I had a great conversation with Dahlia Lithwick and Joan Biskupic on the Slate Amicus podcast about the weird state of the Supreme Court before the coming storm and the Court’s intersection with the January 6 investigation.
Dahlia Lithwick is joined by CNN legal analyst Joan Biskupic and election law Professor Richard Hasen for what could be called “Amicus: Wheels Coming Off Edition”. We’re still waiting for a bevy of blockbuster decisions, and despite Chief Justice John Roberts’ solemn wish to steady the ship, events at the January 6th select committee seem destined to scupper it. Joan, Rick and Dahlia talk about what’s to come in the most unusual last two weeks of June at the court that any of them can remember.
Adam Liptak NYT Sidebar column:
But is there indeed evidence that public opinion influences the court?
The justices themselves have suggested that there is at least a correlation between the popular will and judicial outcomes.
“Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” Justice Sandra Day O’Connor wrote in “The Majesty of the Law,” published three years before her retirement in 2006.
Justice Ruth Bader Ginsburg, who died in 2020, wrote in a 1997 law review article that “judges do read the newspapers and are affected, not by the weather of the day, as distinguished constitutional law professor Paul Freund once said, but by the climate of the era.”
Justice Sonia Sotomayor, in remarks at a law school in 2011, said that the court did not take public opinion into account in its rulings. At the same time, she said, the court manages to reflect the public’s views.
“On the vast majority of cases,” she said, “I bet we’re right with them.”
Books have been devoted to the subject. An important one, published in 2009 by Barry Friedman, a law professor at New York University, set out its thesis in its subtitle. It was called “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”
For starters, Professor Pildes wrote, it is hard to know just what is meant by public opinion. Is it what people tell pollsters? The views of political elites? The actions of elected lawmakers?
“Public opinion can be very nebulous,” he said in an interview. “It can be very dependent on how questions are framed.”
And what is the mechanism through which public opinion, however defined, influences the justices?
“How is the court supposed to be constrained and by what?” Professor Pildes asked….
Professor Pildes, who served on the commission President Biden appointed to explore proposals to overhaul the Supreme Court, said that any new effort to expand the size of the court faced a steep uphill climb in light of the polarized political environment and the Senate’s filibuster rule.
His article explored another way in which the court could be tethered to public opinion.
“The one powerful mechanism for ensuring that the court is in line with majoritarian views is the appointments process, which in the United States is more politically structured than in some countries,” he wrote, adding, “If the cycle of appointing justices tracked the cycles of electoral politics, there would be strong reason to expect the court continually to reflect the dominant views of the president and Senate.”
But at least two phenomena undermine that expectation. First, appointments do not track electoral cycles. President Donald J. Trump, aided by the hardball tactics of Senate Republicans, appointed three justices in a single term. His most recent predecessors — Barack Obama and George W. Bush — appointed two justices each over their eight-year presidencies.
A second reason the appointment process turns out to be a poor proxy for public opinion is the length of time justices now stay on the court. “Up until the late 1960s, the average term of service was around 15 years,” the Biden commission’s report found. “By contrast, the average tenure of the justices who have left the court since 1970 has been roughly 26 years.”
If it seemed in recent decades that the justices were more or less in sync with the public, that may simply have been because the swing justice, by happenstance, mostly reflected public sentiment.