San Francisco It says a lot when we feel relief that the US Supreme Court did not do as much damage as they might have done to the country. That’s not the same as applauding a good decision, but more of a statement on how bad it’s gotten that we worry about how much worse it could be under the current hard-right majority on the court.
We’re talking about a decision by a 6-3 vote, and yes, it should have been 9-0 unanimous on the preposterous claim that arose from the North Carolina legislature that essentially tried to establish a constitutional right for state legislators to overrule any state or other court action and assert authority over federal elections in their states. Virtually every legal authority and observer to the left of Attila the Hun who had opined about the court’s decision ahead of time could see no legal justification for anything other than solidly rejecting any notion that state legislatures were supreme. Had the decision been otherwise, then legislatures would be unbridled in gerrymandering. An affirming decision also would allow state legislatures to certify presidential electors not based on the popular vote in their state, but based to any whim and they might have wanted to demonstrate, or in the case of January 2021, that when Trump and his vassals requested Georgia, Arizona, Michigan, and Pennsylvania legislators to overturn the Biden victory on January 6th.
There won’t be any parade about this decision, because even though they rejected the claim from North Carolina, to get to a 6-3 majority with Chief Justice Roberts writing the opinion they left holes big enough for trucks to drive through without less light on their meaning than any of us would find from a moonless sky. As a legal scholar points out:
The decision merely says that “state courts do not have free rein” and that they may not “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
What the heck does that mean? What does “free rein” mean here? Even more curious, how are the embattled forces at the state level going to try and parse what it means by “ordinary bounds of judicial review?” For example, under the current Supreme Court, almost every landmark decision has arguably been way outside the “ordinary bounds of judicial review.”
What kind of real guidance does this offer to all the politicians and judges around the country have now on all the cases that will be lining up on the runway in 2024 to challenge elections and revive this “independent state legislature” malarkey? If we want free and fair elections without mess and mayhem, this decision doesn’t take as out of the woods, but leaves us holding our breath again and bracing for the future.