Crackpot MAGA Theory (Thankfully) Loses at the Supreme Court

MAGA had its day in court Tuesday — and thankfully, it lost.

By a vote of 6-2, the Supreme Court rejected one of the most bizarre theories to make it to its hallowed halls: that in setting the terms of elections — maps, polling places, voting rules, even review of election results — state legislatures can’t be reviewed by state courts.

But the fact that it even got this far, and that two justices voted in favor of it (with one more voting that the case was moot), should keep you awake at night.

Had this case, Moore v. Harper, gone the other way, state legislatures, which are often overwhelmingly controlled by one party, would have been able to set whatever rules they wanted, draw whatever maps they wanted, and set aside any results they didn’t like, with judicial review coming only from federal courts.

The results aren’t hard to imagine: Just look at what happened in 2020, where MAGA-controlled state legislatures tried to invalidate presidential election results based on conspiracy theories. Or look at the election map at the heart of this case, in which North Carolina Republicans used big data to create a wildly slanted, partisan gerrymander.

These are exactly the reasons we have state and federal courts, as Chief Justice Roberts wrote in his 30-page opinion, which cited the first case everyone learns in law school, Marbury v. Madison (1803), which first set forth the principle of judicial review.  Political entities are political, they are subject to shifting political winds, and politicians have political motives. Courts exist to check the excesses of that political power against the foundational guarantees of rights that are found in state and federal constitutions.

What’s amazing is that so many Republicans, and two or three (more on that later) Supreme Court justices, wanted to throw that out the window.

And all on the basis of a technicality, arguing that, because the federal constitution empowers state legislatures to set the terms of elections, only federal courts can review them. Chief Justice Roberts thoroughly dismantled this legal theory, with recourse to numerous Supreme Court precedents dating back to 1916.

The constitutional reasoning is extremely persuasive, which is why the “independent state legislature” theory itself was a fringe idea until quite recently, invoked solely by Republicans when they don’t like election results.

It made its first appearance in the notorious 2000 case of Bush v. Gore, when the Supreme Court wildly contradicted its own federalist principles to overturn a Florida court’s analysis of a Florida state law – and handed the presidency to George W. Bush. Then-Chief Justice William Rehnquist invoked a version of it in a concurring opinion.

Not coincidentally, the theory made its next appearance when Arizona Republicans tried to invalidate that state’s independent redistricting commission. And then, in 2020, Donald Trump’s lawyers invoked it as a basis for overturning several states’ election results. See the pattern?

Now, a Republican-dominated North Carolina legislature has brought the theory all the way to the Supreme Court, arguing that its gerrymander shouldn’t be reviewable by state courts.

A host of legal authorities — the chief justices of all 50 states, conservative and liberal legal authorities, and three recent solicitor generals — have said this is nonsense, arguing in amicus briefs that, of course, the Founders intended election lawmaking to be just like other lawmaking, subject to ordinary constraints, including review by state courts.

As Neal Katyal, a former solicitor general who helped to argue the case, put it, “for 250 years, courts have not read the Constitution this way. There is no such thing as an independent state legislature. This idea is wrong.”

The Supreme Court agreed.

Not surprisingly, the only justice to disagree was Justice Clarence Thomas, in a dissent joined by Justice Neil Gorsuch.  (Justice Samuel Alito joined in part of the dissent, which argued that the case was actually moot, but he did not join in the substantive holding.) Justice Thomas’s view of American democracy has always been a little… odd, even before his wife’s efforts to overturn the 2020 election based on wild fantasies and text messages laden with exclamation marks.  He has said, several times, that the Establishment Clause shouldn’t apply to states at all, meaning that states could declare an official state religion.  And he has repeatedly opined that states should probably be free to ban not just abortion but contraception, no-fault divorce, and same-sex marriage as well.

Of course, Justice Thomas’s federalism is a pick-and-choose affair. When states do things he disagrees with, as when a Florida court decided the 2000 presidential election in favor Al Gore, he goes the other way, voting to reject that court’s interpretation of a Florida law — a clear violation of federalist principles — and hand the election to George W. Bush instead.

But when conservative ideological positions align with federalism, Justice Thomas is its staunchest defender — and so he did here, though it’s worth noting that, in this case, the chaos could have come from the left as well as the right, with liberal state legislatures adjusting the “time, place, and manner” of elections with just as much partisan gusto as conservative ones.

In the end, the sane middle of the Court — Chief Justice Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett — sided with sanity, and with the Court’s three liberals, in throwing this theory into the dustbin of history. To be sure, this Supreme Court is still extremely conservative; Justices Kavanaugh and Barrett voted to overturn Roe v. Wade, after all, and Chief Justice Roberts has shredded voting rights on numerous occasions.

But the “independent state legislature” theory isn’t conservative — it’s MAGA, which is now an anti-democratic, authoritarian movement, animated by grievance, rage, and ignorance.  Thankfully, there’s still a difference between the two.

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