Opinion: Another not-as-bad-as-it-could-be decision from America’s highest court

Editor’s Note: Nicole Hemmer is an associate professor of history and director of the Carolyn T. and Robert M. Rogers Center for the Study of the Presidency at Vanderbilt University. She is the author of “Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s” and cohosts the podcasts “Past Present” and “This Day in Esoteric Political History.” The views expressed in this commentary are her own. View more opinion on CNN.

The Supreme Court has handed down yet another not-as-bad-as-it-could-be decision.

In Tuesday’s opinion in Moore v. Harper, the Court had an opportunity to legitimate a radical doctrine, the independent state legislature theory (though both “doctrine” and “theory” suggest more intellectual rigor than has ever been applied to the idea).

Invented just a few decades ago, the doctrine would empower state legislatures to act without state judicial oversight. Its most extreme version, which gained popularity on the right after Donald Trump lost the 2020 presidential election, independent state legislature theory would allow state legislatures to override the popular vote in federal elections.

The Supreme Court rejected it Tuesday in a 6-3 decision. The majority straightforwardly dismissed the argument, with Chief Justice John Roberts writing that the “Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.” But it has gained popularity in right-wing circles, where the hunt for procedural techniques to bypass or counter democratic institutions has reached a fever pitch in the years since the January 6 attack on the Capitol. (Why do by mob what you can do by law?)

But the real key to understanding not just this theory, but the broader antidemocratic goals it serves, is in the origins of independent state legislature theory: Bush v. Gore.

Nestled in that unusual 2000 ruling was the newborn theory, most fully articulated by then-Chief Justice William Rehnquist in his concurring opinion, joined by Justices Antonin Scalia and Clarence Thomas. There, the justices argued for a kind of legislative supremacy in election law, one largely beyond the reach of the state judiciary’s oversight.

Beyond the specifics of that opinion, though, the birth of independent state legislature theory in Bush v. Gore serves as a reminder that the antidemocratic turn in the US in recent years did not begin with the nomination of Donald Trump, but had been seeded much earlier.

Confusion reigned in the closing months of 2000, as it became clear that the outcome of that year’s presidential election depended on the whisper-thin margin between George W. Bush and Al Gore in Florida (a state where, at the time, Bush’s brother Jeb served as governor). Because initial counts showed Bush with a lead, however small, the Republican strategy was to stop any recount from occurring.

Delay was an ideal tactic because time was of the essence: vote certification had to happen quickly, since less than three months separated Election Day and Inauguration. Republican operatives and agitators used protests and violence to stop the count in Miami-Dade County (the jauntily-named “Brooks Brothers riot,” which effectively turned out to be a rehearsal for the more violent insurrection 20 years later).

But it was the US Supreme Court that ultimately halted the recount, in a 5-4 decision in which the majority was made up entirely of Republican-appointed justices. In addition to the immediate effect — the Court stopped the Florida count, allowing the state’s Republican leadership to certify the election for Bush — the various opinions included the origins of modern independent state legislature theory. In his concurrence, Rehnquist wrote that “there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them.”

For the next two decades, that idea largely lay fallow, both because Bush v. Gore was a stain on the Court’s reputation and because the theory seemed a little wacky, rooted in neither history nor precedent. Yet it remained a temptation for activists eager to wrest power away from both the people and the courts when it came to elections, hoping to vest it instead in (Republican) state legislatures.

When pro-Trump lawyers and activists began scouring legal history and theory for some way to overturn the 2020 election, despite Joe Biden’s decisive victory, they latched on to the Bush v. Gore precedent. And while the courts didn’t take the bait in any of the shambolic cases made by pro-Trump lawyers, several right-wing Justices — Thomas, Samuel Alito and Neil Gorsuch, the three dissenters in Moore v. Harper — have all shown some interest in finding a way to work the independent state legislature idea into their rulings.

Moore v. Harper shows that, while the justices remain interested in the novel idea, they do not yet have a majority in favor of it. But their interest means that the right will continue to press the case, in the hopes that, before too long, they will be able to embed independent state legislature ideas into law.

While independent state legislature theory has been dealt a crucial blow by this ruling, its modern origins in Bush v. Gore serve as an important reminder of the longer illiberal project on the right, one that is not just rooted in the nation’s distant past, but in its more immediate history.

Historians and analysts have pored over US history to make sense of the country’s antidemocratic turn in recent years. They have looked to the nation’s legacy of enslavement and ethnic cleansing, to the coups and counter-revolutions of the Jim Crow era, to the years of massive resistance and rise of White power movements.

And yet, they have paid relatively less attention to more recent precedent. Trump’s attacks on the Bush administration made it seem as though his agenda marked a sharp break from the Bush era. But when it came to dismantling democracy, Trump acted not as a critic of the Bush administration, but as a student of it. And even without Trump in office, that project continues on.

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