Midway through yesterday’s Supreme Court oral argument in Moore v. Harper, the case concerning the “independent state legislature” theory, Justice Elena Kagan took a moment to consider the stakes. “This is a theory with big consequences,” she noted.
Kagan’s comment was a dry bit of understatement. Ever since the Supreme Court first agreed to hear the case, Moore has drawn alarm from across the political spectrum, with liberal activists and grandees of the conservative legal movement alike condemning the independent state legislature theory as a threat to American democracy.
Making a firm prediction on how the Court might rule in Moore based on oral argument alone would be a mistake: Legal scholars and reporters tend to refer to the practice of guessing how the justices will vote following an argument as “reading the tea leaves,” and as the metaphor suggests, this method of prediction isn’t particularly precise. That said, few justices seemed interested in adopting the more aggressive variations of the independent state legislature theory that could throw American elections into chaos. But the real test will be in just how thinly—to paraphrase another comment of Kagan’s in a recent case—the Court decides to slice the bologna.
The independent state legislature theory is frustratingly difficult to understand—which is one of the reasons Moore has caused such alarm. In essence, proponents of the theory argue that the Constitution grants state legislatures an unusual degree of nearly unchecked power to control how states administer federal elections.
How much power, and how unchecked, depends on what variation of the theory you adopt. In the most aggressive version, state legislatures might be unconstrained even by state constitutions—stripping away constitutional protections for voting rights or against gerrymandering. Or perhaps state courts and election officials would be limited in their ability to interpret laws passed by the state legislature or engage in the discretionary decision making necessary to smoothly run an election. The theory would provide a more active role for federal courts, which would be empowered to weigh in on whether state courts and officials had overstepped the boundaries placed by the Constitution on state legislative power.
Opponents of the theory have warned that this argument, if adopted by the Supreme Court, could generate chaos in state election administration, a flood of litigation in the federal courts by candidates seeking to gain electoral advantage, and a resulting decline in trust by Americans watching the election system flail. Neal Katyal, the lawyer representing one group of litigants opposing the theory in Moore, used dramatic phrasing to describe the potential fallout: The independent state legislature theory, he warned, could have a wide “blast radius.”
Over the course of the lengthy, almost three-hour argument, the justices grappled with how best to interpret the relevant constitutional language. The three liberal justices were clearly skeptical of, and at times outright hostile to, the theory. In one unusually sharp exchange, Justice Sonia Sotomayor seemed exasperated with efforts by David Thompson, the lawyer representing the Republican North Carolina state legislators who promote the theory, to scrape together historical support for his arguments. “If you rewrite history,” she told him, “it’s easy to do.”
But even conservative justices who had previously voiced some sympathy with the independent state legislature theory seemed frustrated with Thompson’s insistence on making aggressive arguments for legislative power instead of offering more measured interpretations. The real intellectual energy of the argument focused on just how the Court might sketch a narrower vision of the independent state legislature theory that could provide some level of increased freedom for legislatures without fully unleashing state lawmakers to do their worst. Conservative Justices Amy Coney Barrett and Brett Kavanaugh, along with Chief Justice John Roberts, seemed notably interested in this approach.
This is a welcome sign for Court-watchers concerned about a unified conservative bloc backing the North Carolina legislators’ approach. It would mean avoiding the total election chaos forecasted by scholars apprehensive about the more extreme variations of the theory. It would also, importantly, provide no support for rogue state legislatures seeking to justify an effort to overturn the results of the 2024 election—the nightmare scenario that has worried many commentators on Moore.
But just what would a narrower version of the independent state legislature theory look like? It’s not clear, and the justices seemed dissatisfied with the options presented to them. Any standard will need to be defined enough to provide guidance to the state judges who may now be looking over their shoulders at the federal courts newly empowered to second-guess their interpretation of state election law. And enterprising litigants may still be able to make use of a more constrained independent state legislature theory to cause chaos in the courts—a particularly concerning prospect given a federal judiciary steering sharply to the right. Several times during oral argument, Justice Samuel Alito questioned whether state courts could be trusted to rule without federal judicial oversight on tricky questions that spoke directly to the integrity of democratic self-determination. The idea that the public might not trust the Supreme Court, either, didn’t seem to occur to him.