The Supreme Court Case that Could Upend Democracy

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Dahlia Lithwick: This ad free podcast is part of your Slate Plus membership.

Speaker 2: I believe this is the most important case for American democracy literally since the founding of the nation.

Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law, the rule of law, the U.S. Supreme Court. And I’m Dahlia Lithwick, and I cover those things for Slate.com. And on today’s show, we are hoping, fingers crossed, to have the definitive conversation about more versus Harper. That is arguably the most important case at the Supreme Court that everyone is talking about, but not many of us fully understand. And so to walk us through the ins and outs of the independent state legislature theory, our guest is an icon.

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Dahlia Lithwick: Judge Michael Luttig announced this week that he will be serving as co-counsel in the case alongside Neal Katyal, representing the voting rights groups in Moore v Harper, which has just been added to the Supreme Court calendar for December 7th. Judge Michael Luttig, a decades long luminary in conservative legal circles, ended up playing a central role in forestalling Donald Trump’s 2021 bid to have Vice President Mike Pence simply set aside the Electoral College tallies and block the certification of the 2020 presidential election. Judge Luttig later testified about that effort before the January six committee.

Speaker 2: Donald Trump. And his. Allies and supporters. Are a clear and present danger. To American democracy.

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Dahlia Lithwick: And now the man who keeps insisting that he really is retired has thrown in with the voting rights groups arguing in opposition to the so called independent state legislature doctrine. It is a theory of constitutional governance that gives state legislatures unreviewable, unchecked plenary power to. Well, we’re going to sort that out. But to do something in administering elections later on in the show. Slate Plus, members will get to hear from our very own Mark Joseph Stern, who will fill us in on a challenge to President Biden’s student debt relief plan. Gun regulations and the Fifth Circuit’s recent decision to effectively strike down the Consumer Financial Protection Bureau.

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Dahlia Lithwick: But first, Judge Michael Luttig served as the assistant attorney general in charge of the Office of Legal Counsel in George H.W. Bush’s Justice Department. He was sworn in to a seat on the U.S. Court of Appeals for the Fourth Circuit at the age of 37. At the time, the youngest federal appellate judge in the country. He served on that court for 15 years, earning a reputation as one of the nation’s most important conservative jurists and thinkers. He was often mentioned as a possible Supreme Court nominee himself in the Bush administration, and he sent more than 40 clerks. They were known as Ludic Gators into Supreme Court clerkships, three of whom clerked for Justices Antonin Scalia and Clarence Thomas. Among those former clerks, Senator Ted Cruz of Texas and Dr. John Eastman, both of whom were instrumental in attempts to throw the 2020 election to Donald J. Trump.

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Dahlia Lithwick: Judge Luttig broke with the party or parts of the party and with some elements of the conservative legal movement over those events of January 2021 and again over this litigation in Moore v Harper, which is, as he put it this week to The New Yorker’s Jane Mayer quote, Without question, the most significant case in the history of our nation for American democracy. And in case that wasn’t clear enough, he added, quote, Legally, it’s the whole ballgame. Judge Luttig, I cannot overstate what an honor it is and what a thrill it is to talk to you about a case that I feel like I’ve been discussing on this show for a full year and I still can’t completely wrap my brain around. Welcome.

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Speaker 2: Well, thank you, darling. It’s actually my honor to be on with you today. I can’t tell you how much I appreciate the invitation to be here with you today. But. But I will say it’s possible that you know more about this than I do, Dahlia.

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Dahlia Lithwick: You know, I find myself so tangled up, and I’m so glad you’re here because, you know, we have two different constitutional provisions. We have dicta from Bush v Gore. We have, you know, an array of kind of interpretations of this. And so I’m kind of twisted up in pretzels trying to spitball which piece of this very, very elusive doctrine we’re talking about.

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Dahlia Lithwick: So I was hoping even before we kind of tumble down the doctrinal rabbit hole together, I want to start by noting I’ve sort of said it in the introduction, the obligatory fact that you have been a kind of stalwart of the, quote, conservative legal movement. And as I understand it, what has changed for you is not law. It’s politics. And I think you would say, but I want you to express it in your own terms that in some sense this is sort of a movement and a party or parts of a movement and a party that have become unmoored from what you think are conservative first principles.

Speaker 2: And we’ll discuss every bit of it. There’s no reason to apologize for any confusion. I’m quite confident that there are actually very few people who understand this at all. And when I say that I include lawyers and even judges among them. So we’ll get to all of it that we have time for.

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Speaker 2: As to that, your embedded question, nothing has changed in my view at all. I’ve been a lawyer and judge my entire life. To my knowledge, I’ve never spoken a word of politics publicly. I could be mistaken in that. But that’s almost true. That’s not literally true. All I do is law and nowadays constitutional law in particular. So for me, this question that’s before the court in more versus Harper is purely a constitutional question. Of course, I understand the politics and even the partisan politics around the issue. And as you rightly said, I believe this is the most important case for American democracy, literally since the founding of the nation almost 250 years ago.

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Speaker 2: Now, to speak just for a moment as to the partisan politicians on both sides of the case, I would only say to my knowledge that it’s more the Trump wing of the Republican Party that is pitted against everyone else as politicians. Now, I’m in no position to speak to that. That would be my guess as to how the partisans line up on this constitutional case.

Dahlia Lithwick: And before we talk about doctrine, I know this is a legal show, but I really have to ask you one time more to tell the amazing story of how you taught yourself Twitter in the days before the January six certification of the election. I love this story because it’s such a story about the intersection between sort of law and communication. And so for for listeners who don’t know, I think the short version is you became aware that there was this kind of pressure campaign to get Vice President Pence to set aside the election results. And you needed, I think, a huge megaphone to make very simple constitutional and statutory point, which is he can’t Can you take it from there and just tell us how you taught yourself? Twitter, please.

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Speaker 2: Yeah, look, everyone loves this story and I actually love it myself. And it really began literally on the morning of January 5th. I got a phone call from vice president’s outside lawyer Richard Cullen, who was a long time friend of mine. Richard said, Judge, we need to get your voice out to the country as to the responsibility of the vice president tomorrow. And I was fully aware of the debate and the demands of the former president on the vice president.

Speaker 2: But I said to Richard, I said, well, Richard, I don’t even know what that means. Get my voice out to the to the country. I said, I’m retired. I don’t have any platform at all. I don’t even have a fax machine or stationery to write something. I’m just at a loss. And he said, Well, I don’t know how to do it either, but it’s urgent that you do it immediately. He promised to call me back every 5 minutes and did until finally he said, Have you thought of anything? And I said, Well, I opened a Twitter account a few weeks ago, but I don’t know how to tweet and read. Had said. That’s perfect. Can you do this immediately?

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Speaker 2: And I said, Well, Richard, did you not understand what I said? I don’t know how to tweet. And he said, Just do it and it’s got to be done fast. And I said, Well, you know, Richard, the one thing I’m never going to do is tweet on this matter at this moment in the most significant moment in American history, unless the vice president approves every single word.

Speaker 2: Okay. And he said, well, the vice president will be fine with whatever you say. And I said, No, you’re not listening to me. I don’t really care what the vice president thinks. I will not do it unless he approves it. He says, I’ll call you back in 5 minutes. And he calls back and says, Now, listen, Judge, the vice president will be fine with anything that you say. And I said, Richard, I don’t like this one bit, but I’m going to do it.

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Speaker 2: And so I typed out on my iPhone what is now the famous tweet. But I didn’t know how to tweet it. So I came down to this office where I’m sitting right now in in Colorado, and I copied the type to version from my iPhone into a Word document because that’s the only thing I knew how to do. And then I divided it into however many characters you’re given in a tweet. Then I had to figure out how to tweet it, and I had no idea how to tweet a thread as I now understand it. And my son sent me the Twitter instructions and I followed those to a tee.

Speaker 2: And then it nervous the whole time, not only about the technology, but about what I was doing. But finally, after proofreading it as many times as I could, I pushed the button tweet and it went. I never had any idea that anyone in the world Dahlia would really see it. And about 10 minutes later, Richard called back and said, Your tweets on the front page of The New York Times. And and I just said, Richard, you know, I don’t get it. I said, just leave me alone. And and we hung up because I was like something was going on. No one had told me. And and I didn’t care. But that’s the story in a nutshell.

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Dahlia Lithwick: I love it in no small part because it goes to such a through line on this show, which is everybody’s always frustrated That law operates too slowly. Right? And there’s turtles all over the courtyard at the U.S. Supreme Court. It’s meant to operate slowly, but it is a story of ways in which law can in some really sort of exigent moments, operate really quickly. And, you know, the voice of somebody with stature and gravitas, finding a platform kind of scrambling to do it, and then appearing within minutes on the front page of The New York Times to arrest a lawless doctrine. It’s very profound, I think, and says something about the way forward, maybe for all those folks who say that that law is just too backward looking and deliberative, that you can do this quickly.

Speaker 2: It certainly is the first such instance in history. But I would caution you in your optimism, I, I can’t imagine another circumstance arising in the future like this one.

Dahlia Lithwick: So before we again get into the weeds, you can tell I’m resistant to the weeds today, but I do wonder if you would trace a through line for me from what happened for you on January 5th and sixth. Your testimony about that and now Moore V Harper, what’s the unifying theme here for you? Is it because every iteration of the independent state legislature theory is pernicious and dangerous, or is it a unifying theme about, you know, attempts to set aside the machinery of democracy? Do you see these all of a piece? How do you connect them in your mind?

Speaker 2: The through line is very simple, very clear and profound, frankly. The independent state legislature theory, which we’ll get into in a minute, was the centerpiece of the effort to overturn the 2020 presidential election. In that context, it was the independent state legislature theory as applied to the elect Dawes Clause of the Constitution. Not the elections clause of the Constitution, but in more versus Harper. The issue is the independent state legislature theory as applied to the elections clause.

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Speaker 2: So the through line is this On January six, 2021, I had to reach a decision in my own mind as to the legitimacy and validity of the independent legislature theory in the context of the elect Dawes Clause. And I had to make that decision before I could advise the vice president in the way that I did.

Speaker 2: So from January 6th to this day, I believe that I had an obligation to the country to explain my thinking as to the independent state legislature theory. And it was just a matter of time. I knew before I would have to do that. And I first did it not in great detail, but in my testimony before the January six committee in June. And for your listeners in that context, what I said in response to questions and in addition in my written testimony, was that there was no support in the Constitution or the laws of the United States for the independent state legislature theory.

Dahlia Lithwick: And maybe a good place to jump in is on this question of scope, because I think if you follow more ve Harper Twitter, which is admittedly a niche proposition, it’s very, very hard not to infer that nobody quite knows the scope of what this litigation encompasses.

Dahlia Lithwick: So as you’ve just said, you know, we’ve got two different iterations of the theory. Only one is invoked in Moore v Harper. It’s not about the electors. But I think it raises this question, Judge, about whether this case is a kind of teensy tweak to how elections are administered or whether this represents what I think you would describe as a much larger project, a kind of wholesale rejiggering of the very notion of checks and balances.

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Dahlia Lithwick: And one of the things that I think makes this such a troubling case to locate in our minds is that some of the amicus briefs on the other side really do make the claim that anybody who objects to what North Carolina is seeking is basically hysterical and, you know, shouldn’t even be allowed to be in the discourse. And I’m looking at one of the amicus briefs that says, quote, by redundantly bellowing the, quote, independent state legislature mantra. Many self-anointed constitutional law experts have convinced a healthy cross-section of armchair court watchers that should the court decide this case the wrong way, it would signal the end of democracy. Nonsense. Any modicum of honest scrutiny reveals that framing this case in that way transforms the question presented from one about the proper responsibilities for the organs of state government to a cynical, pejorative smear and quote.

Dahlia Lithwick: So I think one of the reasons that this case is complicated is because it comes at us through this fog of what I would almost called gaslighting about the extent of what is being asked here. And so when you use like very strong language to say how urgent and important this is, that in its most extreme versions, independent state legislature doctrine really does strip away basic ideas of checks and balances. How do you respond to the kind of commentary that says, Oh, you’re just making up a problem that doesn’t exist.

Speaker 2: Daily of the courts and the law, Assume the kind of gaslighting that you’re referring to. Unfortunately, even in briefs that are filed in the courts. But the courts and the law are impervious to that kind of gaslighting. Okay. So to whatever extent that you were unintentionally suggesting that I was engaged in the same kind of gaslighting talk, let me explain the difference. Every word that I’ve spoken and written about this is solely and exclusively words of law.

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Speaker 2: Now to the particular passage or point that you made as to my statements. It is a statement of law that that the application of this theory in both context, the electors clause and elections clause, is of monumental importance to democracy. Democracy being defined as democracy properly is defined to be the process in America by which the people elect their representatives, who in turn represent the people in the federal government. So the listeners from that can easily understand the significance to democracy of Moore versus Harper.

Speaker 2: So in Moore versus Harper, just to begin to talk about that case, in the simplest terms possible. The Supreme Court is reviewing the North Carolina Supreme Court decision which invalidated under the state constitution the redistricting plan of the North Carolina legislature. Now, the state Supreme Court invalidated that plan under the North Carolina Constitution under several provisions, including a provision requiring a free and fair elections. And many of the states have similar constitutional provisions.

Speaker 2: And so the petitioners are arguing that the state Supreme Court in North Carolina had no authority whatsoever to invalidate that redistricting plan, which, you know, would euphemistically be called a gerrymandered plan that favored the Republicans. And that’s because of the independent state legislature theory.

Speaker 2: The petitioners say that the North Carolina legislature has plenary and exclusive authority to redistrict for congressional redistricting purposes. And their decisions, their plans, their redistricting plans are not subject to review by either the state courts or any other executive or election official in the state, such as even the governor. So that’s the issue.

Speaker 2: Now, how the court decides that decision, I think your listeners can understand, has profound consequences for democracy because it is profoundly important how the states draw the districts in the state for obvious reasons. But that’s not a political question, Dahlia. And again, I want to first make this point. The legal case is not politics. Okay. This is a constitutional case of the highest order. That has political implications, but it’s a constitutional case. And that’s the only way that the courts to think of it. That’s the only way that I think of it. And that’s the only way that I’ve talked about the case.

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Dahlia Lithwick: And I want to be super clear that I when I use the word gaslighting, I actually am not referencing what I think is your correct view that this is hugely consequential, but just that I’ve been really struck by attempts to flatten and diminish the stakes of this case and to sort of imply that anyone who thinks this is a big deal is overstating it, because I think that it’s it’s separate and aside from the merits case, it’s a sort of a rhetorical trick that I think ends up kind of back footed when, as you say, this is in some ways a singularly important case simply about constitutional provisions.

Dahlia Lithwick: I wonder you’ve talked about the elections clause in the electors clause. There’s one other piece of this, which is the then Chief Justice Rehnquist’s concurrence in one of the Bush v Gore cases, the Palm Beach County case. That’s a concurrence that only garnered three votes, and yet that two is being invoked now as though there is some principled legal decision they are about in that situation, you know, a claim about overreach from the Florida Supreme Court.

Dahlia Lithwick: So can we fold into these constitutional questions, this larger question of doctrine and precedent and the ways in which this issue has arisen before it has not prevailed and the ways in which some of the folks who are arguing on behalf of the North Carolina legislature are either cherry picking or quoting from dissents or concurrences, or essentially saying in the most extreme versions, doesn’t matter what the case law says and what the precedent says, because this is a policy matter.

Speaker 2: Absolutely.

Speaker 2: First off, Dahlia, I was just pulling your leg about gaslighting as to me, I’ll confirm that by this statement. I totally understand your concern about gaslighting by others, especially when it’s done before the Supreme Court. But that’s not my job to ferret out that it’s the Supreme Court’s what your listeners, you know, need to know.

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Speaker 2: Is this the genesis for the independent state legislature theory is, as you said, Dahlia, the concurrence in Bush versus Gore, authored by then Chief Justice Rehnquist, joined by Justices Scalia and Thomas. In short, their articulated concern was that there must be some limitation on the state Supreme Court’s interpretive authority under its own state constitution in order that the state court. Not prescribe the manner for holding. In that case, for appointing state electors.

Speaker 2: So let’s just pause for a moment and think about that. The chief justice and Justices Scalia and Thomas were concerned that the Constitution requires that the state legislature make the decision. And in that case, they were concerned that the state courts had usurped the role of the state legislatures. As you said, though, that was in a concurrence and it only had the three votes.

Speaker 2: But in that concurrence Dahlia, those justices did not suggest anything like the independent state legislature theory that is being advanced in the Supreme Court by petitioners in more versus Harper, which is to say no justice on the court even to this day has. Hinted that he or she would embrace a theory, independent state legislature theory, that would foreclose all state judicial review of a legislature’s redistricting decisions. And I’ve written or said, I believe recently on Ali Velshi show that I do not believe that this Supreme Court will embrace that most aggressive version of the theory.

Dahlia Lithwick: I’m thinking about your piece in The Atlantic, where you essentially, I think, roundly debunk the independent state legislature doctrine. You know, as a matter of text and history and precedent and case law. But I wonder if you wouldn’t mind talking just for a minute about the ways in which everything we know about the framers and their suspicion of state legislatures and also the privileging of judicial review means that these ideas would be antithetical. And they were, in fact, not really a part of what anyone was thinking. And also, maybe just to touch on the notion that state legislatures are not sort of independent creatures, they are a function of state constitution.

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Speaker 2: Yeah, well, I mean, that’s an excellent question. And what I wrote in The Atlantic was essentially this, all of which is law, constitutional law. But I said there that there is nothing in the text of the Constitution at all that suggests such a theory.

Speaker 2: There is literally nothing in the pre ratification debates. Or the post ratification discussions. Or for that matter, anything in the history of the nation, from the pre founding to the ratification of the Constitution. That even hints at a theory that would foreclose state judicial review. So let me put some flesh on those bonds in particular.

Speaker 2: Pre ratification. The state constitutions provided for state judicial review of the state legislatures. Elections decisions. Post ratification of the Constitution for the first 20 years until 1820, when most of the state constitutions were written, those constitutions continued to regulate the state legislatures elections decisions, both state and federal.

Speaker 2: And interestingly and significantly, as a matter of constitutional interpretation, many of those post ratification state constitutions were authored or co-authored by our founding fathers and even the framers of the Constitution.

Speaker 2: And by the way, the final piece is that there was never a single word spoken about the state courts not performing their traditional customary review. This would have been a radical thought, even for the framers to have given the pre ratification history in the country, namely the full embrace of state judicial review of all state laws, including election laws. And there’s not one single word. And that is what tells me that the theory is antithetical, as you pointed out, to not only the framers intent, but also to the design and architecture of the U.S. Constitution itself.

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Dahlia Lithwick: And is the fairest reading. I’m trying to be fair, is the fairest reading of the North Carolina ESL t argument. Just a kind of a plain meaning, you know, just read the words version of this where they sort of basically say, look, the elections clause says, quote, state legislatures. So that means the framers were giving this power to state legislatures and it is a plenary power. I mean, are they just essentially saying it doesn’t matter that this is antithetical to the entire architecture that was laid out because the language says otherwise? Is that their best argument?

Speaker 2: Not that the latter of the two points that you just made, Dalia, but it is more than fair to say that their only argument is what they present as the textual argument that because the election clause empowers the state legislature to prescribe the the manner for holding congressional elections. Therefore, neither the state courts nor the state executive officials can have anything to do with it. I think I call that in the Atlantic article, one of the two fatal flaws in their argument.

Speaker 2: And I went on to explain that the mere fact that the end it is a constitutional fact that the elections clause empowers the state legislatures to prescribe the manner of holding elections. But the mere fact that the Constitution does that is not exceptional any more than is exceptional that the federal constitution, you know, requires the Congress to pass the laws.

Speaker 2: But the federal Constitution, by doing that, doesn’t foreclose federal judicial review of Congress’s acts any more than the state legislatures. Power prevents state judicial review of those redistricting decisions. The second floor, while we’re on it that I identified and this gets us into more of the weeds than you may want. And if so, just just tell me.

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Speaker 2: But the petitioners argued to the Supreme Court that when the state. Supreme Court reviews the state legislatures redistricting decisions. It is exercising federal power that has been conferred upon the state Supreme Court. By the elections clause, and I do not believe that is correct.

Speaker 2: The petitioners are mistaken that when the state Supreme Court reviews the state legislatures redistricting decisions. It is exercising state power which was conferred upon the state courts. Not by the federal Constitution. And not by the state legislatures. But rather by the state constitutions.

Speaker 2: That power is actually a reserved power to the states under the Constitution. And for that reason, I thought that together with their their textual argument, which I do not believe to be a textual argument, those two are the flaws in their argument before the Supreme Court.

Dahlia Lithwick: And I don’t think for what it’s worth, that latter point is weighty at all. I actually think it’s quite existential because I think it’s really necessary to understand the role of the state constitution in this dispute. I do think I’m going to ask you to do the hard thing now, which is if you were to sort of map out the skinny venti grande day, you know, the sort of most maximalist version of the theory. And I think we’ve both flicked at it.

Dahlia Lithwick: But the maximalist version is what state gerrymanders are, Unreviewable state voting procedures are unreviewable. The super maximalist version is the electors clause. You know that Brad Raffensperger can just find more votes because you can say that there were election irregularities and turn over another slate of electors. That’s the hyper maximalist version, I think, and perhaps thrown into that also that, as you noted, the governor has no check either. That’s the most extreme version.

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Dahlia Lithwick: What’s the sort of center and the benign versions of this? In other words, I would love for you to give us the menu of perhaps I’d call this how freaked out should we be? And if everything that I’ve posited as the maximalist version and tell me if I’m wrong about any of that isn’t interesting to the court, what is the minimalist version and what’s the intermediate version?

Speaker 2: Yeah, of course. I’m not going to suggest to you or your listeners how freaked out you should be on any of these interpretations, but you expected me to say that. Okay. But I am going to say some things very, very important to you and your listeners, and I’ll start on the elections clause issue presented in more versus Harper.

Speaker 2: The argument and the only argument that’s being made by the petitioners. Is the most aggressive version of the independent state legislature theory possible. So there’s no need for histrionics. That’s just a fact. That is their argument in the Supreme Court. That argument is, as you know and you said that as to congressional redistricting by the state legislatures, they have exclusive authority that is not reviewable under the state supreme courts and that cannot be altered or changed by the election officials within the state.

Speaker 2: Period. Full stop. That’s just their argument. I will say, though, that. In their briefing, and that’s all I’m speaking to and all I will speak to. They understand that there are three or four Supreme Court cases that have been decided before today that present a problem for them. With a problem for that aggressive interpretation, and they variously try to distinguish those cases in their briefing.

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Speaker 2: Or alternatively present those cases as a way to limit their own version of the theory. Just like any advocate know would do now. To get into that, which is to get into the middle position. It definitely gets us in the weeds. But let me try. So.

Speaker 2: I’ll go back to the Bush Gore concurrence by Chief Justice Rehnquist and what I said there. Those justices were concerned that the state Supreme Court’s not. Usurp the authority of the legislatures or substitute themselves for the state legislatures. They actually proposed a standard in their concurrence, which is, you know, the kind of thing the Supreme Court does all the time.

Speaker 2: But to get quickly into the end zone here for your listeners, it would not be doctrinally a middle position. And I’ll explain that in a moment. But a middle position and. The middle position that I believe the court will end up taking is to circumscribe in some way. Small, incremental way.

Speaker 2: The state Supreme Court’s judicial review of the legislature’s redistricting decisions, for instance. And I don’t frankly remember the exact language from the concurrence, but it was something like the state Supreme Court cannot so misinterpret the state legislatures law. As to comprehensively change it. That’s in the law. There are many standards that you could adopt. I’m just using that as an example that would represent, in your terms, a middle ground.

Speaker 2: Now, let me respond to the caveat that would not be a middle ground, as your listeners would understand, between the most aggressive view and the respondent’s position. It would be on the continuum of 0 to 100. That would represent at least a 90 90% win for the respondents, not the petitioners.

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Dahlia Lithwick: I wonder if you can speak to one other thing that you raise in the merits brief, because I don’t think maybe it gets enough attention in page four of the merits brief that was just filed. You all right? Quote, Perhaps worst of all, petitioner’s theory would require this court to second guess state court interpretations of state constitutions, often in an emergency posture on the eve of an election, an intolerable affront to the principles of federalism. And I wonder if you could you know, we’ve talked about text, we’ve talked about history, we’ve talked about precedent.

Dahlia Lithwick: But it does seem to me like one of the issues that is seething under the merits here is this question of the court aggregating to itself the power to determine almost case by case frequently on an emergency basis, what is and is not a permissible elections action. Am I misrepresenting what an absolute pragmatic catastrophe that would be?

Speaker 2: No, I won’t try to unpack that particular sentence from the brief because it actually is presenting several different points. But the most fundamental point in that sentence, which the sentence may not do justice to, is that in your words, the irrigation of power by the Supreme Court of the United States. To attempt to circumscribe the state Supreme Court’s review under its own state constitution. That is the most fundamental point in the whole case.

Speaker 2: Now, as to your question about the pragmatic difficulties, which of course, I’ve just said in so many words, is the lesser of the two points to be made. But yes, that is correct. Also, Dalia. And and that’s the way I think of it, is that those practical problems were borne out in Bush versus Gore. Where to use your words.

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Speaker 2: Again, the most exigent circumstance in American history is relates to the election of the president of the United States. The Supreme Court decided the case. And in deciding the case, of course, it was roundly criticized by many for doing what in Moore versus Harper it would be doing in a more considered non exigent circumstance, which is to create the practical difficulties that you allude to. But then if the court were to do that in more versus Harper, that would be the state of play.

Speaker 2: From now on, the Supreme Court would essentially be monitoring the laws and scores and scores of of practical election administration decisions that must that do occur before every election. And the theory of embrace fully embraced by the Supreme Court would say that this is a point worth making, that the theory would say that the legislature’s decisions. Must prevail.

Speaker 2: But the point I was about to make is this. If in the heat of the moment, the election moment. These decisions are coming up. They have to be made by the election officials on the ground. There is no opportunity for the legislature to meet and decide each and every one of them. But if the theory were embraced in the most aggressive form by the Supreme Court of the United States, that would create utter chaos on the ground prior to every election.

Dahlia Lithwick: Yeah, that that piece I actually hadn’t thought about, but I can understand. That’s sort of exigency upon exigency, right? Because then you’ve got the people who are administering without any idea of what it is that they may or may not do. And I can just envision the nightmare.

Dahlia Lithwick: You know, I would love to ask you the question that I think has been such a through line on this show for the last year and a half about what it means for the court to wade into this. But I think I’m not going to because I think you probably can’t speak to it now that you’re on the merits brief, but maybe we could end with this.

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Dahlia Lithwick: You resisted my invitation to tell listeners how freaked out to be, and I appreciate that that’s not your job, but I wonder if you could give me a sense not of how freaked out you are, but I sense such dismay in you that this is being treated seriously and that it is being treated as though there are, you know, equally balanced, monumentally important arguments and values on both sides.

Dahlia Lithwick: And, you know, you and I have both throughout this conversation in our I can hear in our voices the word doctrine in theory is constantly in air quotes. I wonder if you can give me some sense of how strange it is to find yourself here in this moment where the court seems very, very well. And clearly there were four votes to grant cert, but very willing to entertain an idea that, as you say, has no meaningful foothold in doctrine, in constitutional structure, in text or in history. Does this signal something really perilous to you or is this just the moment we find ourselves in?

Speaker 2: It is just the moment we find ourselves in Dahlia. But I will also answer each of those questions, and I have no problem with them. First and foremost, you know, this is a theory that has its genesis in a Supreme Court opinion. So it is a legitimate issue. Now. To answer one of your questions. Do I believe the Supreme Court?

Speaker 2: Needs to decide this issue. Absolutely. I don’t believe the Supreme Court has any choice but to decide this issue. And now. And that’s what they said in their separate opinions at the time that first in December 2020 that they declined to take the case. And in 2022 surrounding the decision to take more versus Harper. The Supreme Court United States said this is an important issue that must be decided by us.

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Speaker 2: Okay. Now, so as to my view of it as a former judge and as a lawyer, but frankly, just as Mike Luttig, I could not have sounded the alarm, if you will, in any more powerful way. You know, I remember on the one year anniversary of January six, The New York Times asked me to comment on this, and I said I was gravely concerned on January six for American democracy. And if it’s possible, I’m more concerned for American democracy today, one year later than I was then. And then throughout 2022, including most significantly, before the Congress, I said the same thing. And I will assume that you didn’t suggest this at all.

Speaker 2: But. But I have not myself. Treated this issue as one as to which reasonable minds can differ. I’ve done everything but that. And of course, I’m not even an ordinary advocate, you know, much less a partisan. And you understand what I’m saying?

Dahlia Lithwick: I very much do. Judge Michael Luttig served as assistant attorney general in charge of the Office of Legal Counsel in George H.W. Bush’s Justice Department. He was then sworn in to a seat on the U.S. Court of Appeals for the Fourth Circuit, where he served for 15 years. He has joined the team that is litigating more v Harper in the United States Supreme Court set for argument on December 7th. And I think of every guest I’ve ever had on this show. He has handled my multipart nested question, hypotheticals, bullet pointed circuitous questions better than anyone else. Judge Litigate has just been such a treat to have you and I really am grateful for you helping us kind of pick through this thicket because there’s a lot there. But there’s also, as you say, very, very, very important principles that we need to focus on. Thank you so much for your time.

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Speaker 2: Thank you, Dolly. I really appreciate it being here today.

Dahlia Lithwick: Hi to our slate. Plus top secret, extra cool kid listeners. Here’s Mark Joseph Stern. This is the part of the show where he and I dish about everything that we couldn’t get into the main show and we are serving up a little bit of dish. It’s been a while, Marc. It’s been a couple of weeks and.

Mark Joseph Stern: We’re serving up a dish of pork.

Dahlia Lithwick: I was going to say we have pork is on the menu. It’s what’s for dinner. It’s the other dormant commerce clause, white meat. Mark, why don’t you start by telling us a little bit about a pig bass case that was at the court last week that you wrote about as a case that is actually not just limited to pork.

Mark Joseph Stern: A couple of Jews talking about pork. What more could Slate Plus listeners wants? Yeah, so this case is called National Pork Producers V Ross, and it is a challenge to a California law that was enacted through a ballot initiative to ensure that any pork sold in the state of California was raised using certain ethical and humane standards. So a lot of pork producing states like Iowa, North Carolina, the conditions of those pigs, it’s really dire. It’s quite brutal. They are kept in these terrible cages where they can’t move around at all. They’re they’re essentially tortured for their very short lives. It’s a bad situation.

Mark Joseph Stern: California voter said, well, if there’s going to be pork sold in our state, we want it to be produced more humanely. The cages have to be bigger there or there can’t be cages at all. The pigs need to be able to move around. There’s just certain guidelines that in many other countries have already adopted or move toward, but that states that are very invested in pork farming are resistant to it.

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Mark Joseph Stern: So that leads to the big question. In this case, California has very few pork farms. California produces very little pork. It gets most of its pork from other states. And so under this law, if those states want access to the California market, they’re going to have to change the way that they are raising their pigs to comply with California standards or else they’re not going to be able to sell in California and they’re going to lose access to a state where I believe 13% of pork in this country is purchased.

Mark Joseph Stern: So the question is, does that violate the Constitution’s dormant commerce clause, which is a doctrine that the Supreme Court has sort of intuited from the Commerce Clause that holds that while Congress has the power to regulate commerce between the states, and that suggests that states themselves do not have the power to regulate commerce between the states and to disproportionately burden other states production of something like pork to discriminate against products that come from out of state, to throw a wrench in the interstate shipment and commerce of some product.

Mark Joseph Stern: And so the question in National Park is, does this law infringe on the dormant commerce clause? And the huge, terrifying subtext of the case is will this decision one way or the other, have a bearing on an individual’s rights to leave a state to terminate their pregnancy in another state? And that is because the dormant commerce clause, among other things, is a source of the right to interstate travel.

Mark Joseph Stern: The Supreme Court has long said that traveling to another state to engage in commerce is a. Constitutional right. And so there is a real risk that if the Supreme Court upholds California’s law and weakens the dormant commerce clause, that it might, through a backdoor, give red states the ability to impose new limits on their own residents, ability to travel to a neighboring state or somewhere even further to get an abortion, a right that we currently assume is protected, but that the Supreme Court has never ruled on squarely.

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Dahlia Lithwick: And that was the right that Brett Kavanaugh assured us in his Dobbs concurrence that was not even vaguely vaguely on the table that, you know, people would be allowed to travel interstate. What happened at oral arguments that made you think that maybe this is where we’re headed?

Mark Joseph Stern: So it’s really interesting because the dormant Commerce clause divides both sides of the court. It’s obviously a really powerful deregulatory tool. So like the Chamber of Commerce loves it. Business types love it. Sam Alito is the court’s biggest dormant commerce Clause fangirl. Chief Justice Roberts is right there with him. But on the other side, you have Clarence Thomas and Neil Gorsuch, who, following Justice Scalia’s lead, just don’t believe the dormant commerce clause exists. And in between those extremes, you have the liberal justices who clearly want to save the pigs. They obviously believe that California has a really strong interest in protecting animals whose meat is sold in the California market from torment and abuse. And I think that the liberals also generally believe that states have pretty strong authority to regulate health and safety and welfare, even if the implications of those laws reach beyond state borders.

Mark Joseph Stern: But at the same time, you can tell that all three of the liberals are afraid of what this case may augur for the next one or the one after that. What’s going to happen down the road? So I wouldn’t actually wager a prediction of how this case will come out. I think the court is probably going to divide in a really messy way. There might not be a single majority opinion. What we might see are different wings of the court trying to lay the groundwork for the next case by either weakening the dormant commerce clause and saying it doesn’t exist or strengthening the dormant commerce clause or trying to hold the status quo and just take the abortion issues as they come over the next few months and years. If I really had to put a bet down, if I were at the casino, I think the court upholds the California law. But it’s truly up in the air and it’s one to watch because it’s so difficult to see where the doctrine will go from here.

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Dahlia Lithwick: Mark, the other thing you wrote about last week that I want to spend a minute on is a gun case following on the heels of Bruen, where the Supreme Court seems to have changed the law of the Second Amendment. Can you kind of just walk us through what feels like maybe how we’re going to apply Bruen to gun restrictions going forward?

Mark Joseph Stern: Yeah. So since Bruen came down, we have gotten some pretty wacky decisions from the lower courts trying to apply it, remember? Bruen says judges do not get to look at the effects of a gun regulation on safety. They do not get to ask, is this narrowly tailored to further an important government interest? The only question that they get to ask is whether there was an analogous law that fit into America’s history and tradition in 1791 when the Second Amendment was ratified. If there was, then maybe the regulation can be upheld. And if there wasn’t, the regulation must be struck down. And so we have seen judges invalidate gun laws that prohibit carrying a firearm in an airport, in a domestic violence shelter, a daycare center. We have seen judges strike down laws that prohibit you from buying a handgun when you are under indictment by a grand jury for a violent felony offense.

Mark Joseph Stern: And now most recently, we’ve seen a decision holding that a federal law simply prohibiting you from scratching out the serial number that is required to be on your gun, that that law is unconstitutional because serial numbers didn’t exist in the 1790s. And even though they are a vital tool for tracing guns that are used in crime today, the founders and framers of the Constitution didn’t know about them. So they cannot be mandated.

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Mark Joseph Stern: And that is, I think, probably the wackiest decision so far to emerge from Bruen. But it very rigorously follows the Bruen decisions methodology and almost seems to be in an attempt to illustrate the extreme and radical outcomes that flow naturally and logically from everyone’s reasoning.

Dahlia Lithwick: I want to follow up and just ask you about something that you wrote about this week in terms of what the Fifth Circuit just striking down, I guess, the entirety. The CFP.

Mark Joseph Stern: Yeah. I mean, you may have thought, Hey, CFP litigation all in the rearview mirror. We got it over with. It’s done. But no, it is never done because Republican lawyers, particularly at Jones Day, are dedicated to obliterating the CFP, that is the Consumer Financial Protection Bureau. And that is, of course, the agency that protects consumers against exploitative fraud and deceit and things like mortgages, consumer loans, retail banking. And of course, the Republicans, I think, generally want their their corporate clients to be able to engage in that kind of predatory lending and fraud. So they don’t want the CFPB to exist.

Mark Joseph Stern: Now, in the previous round of litigation, the Supreme Court ultimately held that the director of the CFP, who is supposed to be insulated from politics, has to be fireable by the president. You know, Congress tried to insulate the director of the CFP from the president’s whims. It gave them a five year term. It said they can’t be removed from office. But the Supreme Court said, no, no, no, we have to let the president fire the director, but we’re not going to strike down the whole agency. We’re just going to hand the president power to fire the director if he wants to.

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Mark Joseph Stern: Republican lawyers came back and said, okay, well, we have another idea. We think that the CFP is unconstitutional because of the way that it’s funded, The way that it’s funded is that it gets a certain amount of money every year from the Federal Reserve, which in turn draws money from interest on securities that it holds.

Mark Joseph Stern: And Congress passed a law that created a formula explaining precisely how the CFP would get its its its budget each year. And according to the lawyers, challenging it. That is unconstitutional because if Congress wants to fund an agency, it has to put a specific dollar amount in an appropriations bill that is stamped with the label appropriations every single year, and anything less violates the separation of powers. That is a theory that seven different federal courts have already rejected, many of them out of hand. It is a theory that makes absolutely no sense.

Mark Joseph Stern: There are many, many other agencies that are not funded through an annual appropriations bill, specifically financial regulators like the Federal Deposit Insurance Corporation, the Federal Reserve itself, Federal Housing Finance Agency. This is a very common way to fund federal agencies and financial regulators. But now the Fifth Circuit has said that is unconstitutional. And as a result, the entire CFP cannot function. Everything it tries to do is unconstitutional, and every scammer and payday lender in the entire country is finally freed from the tyrannical oppression of CFP regulations.

Dahlia Lithwick: You’re in something of a mood today. Mark Joseph Stern.

Dahlia Lithwick: So you have now laid out the dormant Commerce clause and where it may take us the pros post Bruen world of gun litigation and how to dismantle the government brick by brick. Can you give us one piece of good news, which is the challenge to President Biden’s student debt forgiveness? Because this seems like maybe it’s like the silver lining to the great big bucket. Oh, sad that you have brought to the table today.

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Mark Joseph Stern: I’m not sad. I’m just really pissed off that I have to read these outrageously asinine decisions that don’t even pretend to follow precedent or constitutional text and just toss out a bunch of cherry picked quotes from the Founding Fathers and conclude that it means government is unconstitutional. But yes, there is some good news when it comes to student loans. I think that one of the underrated bonuses of President Biden’s student debt relief program is that we got to watch conservative lawyers abandon any pretense of intellectual consistency or personal dignity and embrace it.

Dahlia Lithwick: Was that is that new? Is that specific to that? I’m sorry, what? Man?

Mark Joseph Stern: I think that we are seeing a new level of indignity and just just sheer hypocrisy and humiliating stupidity, because if there is one rule that conservative judges, conservative lawyers, conservative politicians, everybody on the right, if there’s one rule they agree on it, is that taxpayers do not have standing to challenge federal actions. That if taxpayers could challenge some kind of federal action, some kind of federal spending, whatever, but anyone could challenge anything, and that would be the end of standing. And this is something that Antonin Scalia, Clarence Thomas, were always on their high horses about.

Mark Joseph Stern: This has been a rule that the Supreme Court has applied very, very consistently, with one exception. The court has said that when. The government funds religious exercise that violates individual taxpayers freedom of conscience in a way that is fundamentally different from any other circumstance. But even that exception, the Supreme Court has essentially closed the door to. So there are today really no circumstances under which a taxpayer can say, well, I pay taxes and I don’t like the way they’re being spent, so I’m going to walk into federal court and demand a nationwide injunction. And yet that is exactly what conservative lawyers are doing in a number of lawsuits around the country, including one that has now hit the Supreme Court’s shadow docket.

Mark Joseph Stern: A bunch of conservatives in Wisconsin at this group called the Wisconsin Institute for Law and Liberty. Very far right dark money group. They are trying to revive taxpayer standing just for this case and arguing that they are so upset about student debt relief that they are so aggrieved and sad that they’re just frowning and crying all day about it. And so they are so injured and harmed that they must have simply must have the constitutional authority to file a lawsuit and take down this this debt relief in court. That will not work. I do not think that they will get a single vote on the Supreme Court.

Dahlia Lithwick: Maybe if the taxpayers file the serial numbers off of their student loans. Okay. Mark Joseph Stern covers the courts, the law, elections, law, all the law all the time for us here at Slate. And Mark, it is always a treat and a pleasure. And we just had more versus Harper added it to the Supreme Court calendar. It will be heard on December seven. So let the bone tall relay as they say, it’s coming.

Mark Joseph Stern: We will be back here soon, sobbing our eyes out just like those sweet, sad taxpayers in Wisconsin.

Dahlia Lithwick: And that is a wrap for this episode of Amicus The More versus Harper Edition. Thank you so much for listening in. Thank you so much for your letters, your questions, your comments. You can always keep in touch with us at Amicus, at Slate.com, and you can find us at Facebook.com slash Amicus Podcasts.

Dahlia Lithwick: Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio, and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with another episode of Amicus in two short weeks. Until then, take good care of yourself.