How and Why Justice Breyer (and Other Justices) Should Weigh in on the Independent-State-Legislature Notion Before Breyer Retires

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.)

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