Second, I hope that your logical argument will prevail. My fear is that the majority, as in Dobbs, will not stick to the narrow issues presented and will go far afield to put a broader stamp on the case. There is no limit on the mischief these guys can do, even lying about facts as in the high school coach/religion case. My fear is that the court took the case with an agenda. The only question is how far it will go.
Wait! Wait! It is Saturday evening and it was this writer’s understanding that you were going to get rest as you dealt with COVID. Your good efforts are valued by most readers, certainly me. While this editions offers important information, might you want to think first of your health so your continued good efforts to offer readers the tools to make informed conclusions of their own? Where is your Managing Editor? It is time for her nurturing persona to kick in? Get some rest.
Jul 3, 2022·edited Jul 3, 2022Liked by Robert B. Hubbell
All readers of Robert Hubbell's Today's Edition should treat his disclaimer of constitutional law expertise as excessively modest. Tonight's newsletter offers a sharp, clear, concise explanation of "the Independent state legislature theory." And a theory without proof is clearly what it is, yet another pseudo-intellectual attempt by the right wing to achieve their desired ends through dubious--to say the least--means. The actions by SCOTUS this past week have caused me to change my prior opposition to any serious changes in the composition and rules regarding the Supreme Court. I now believe the strongest package of reforms must be initiated right after the November election, which I bravely believe will provide Pres. Biden with a Congress capable of passing something meaningful. The actions by the fraudulently-obtained reactionary majority on today's Court demand nothing less.
First. Whomever is writing to berate you, needs to find another target. This is not a competition to see who is smartest which is very subjective at best. We are in a fluid, dynamic time. Just share a view or thought without needing to prove superiority to Robert.
Second. The fact you are writing at all with covid is stunning. I am on vacation and can't keep up with it all. High five to Nurse Jill. What a time.
Jul 3, 2022·edited Jul 3, 2022Liked by Robert B. Hubbell
Robert, First and foremost, I am so pleased to learn that you’re feeling better. I also write to note, that while holding the House and picking up 2 Senate seats is critical, my thinking has somewhat broadened since pondering your deep dive into the meaning of the “independent state legislature” doctrine.
I better understand the importance of focusing on select states, specifically states contesting governorships, states’ Supreme Court, and Secretaries of State. I now recognize the challenge, essentially, is to prevent Republicans from attaining trifecta control—control of both legislative State Houses and the Governorship—thereby blocking Republicans from changing state election rules to change who can be in charge, how votes are counted, and how they’re certified, let alone changing how 2024 electors are awarded. Though the underlying objective is to try and protect the 2024 democratic process, clearly, the immediate work, at least partially, is about identifying issues that would move voters to vote who otherwise wouldn’t or that would dissuade Republicans from voting Republican.
Your email arrived in my inbox within seconds of a hair-raising doom and gloomer from Thom Hartman titled The Nightmare Scenario. Thank God you’re feeling well enough to have somehow intuited this. Your measured tone and reassurances are a blessing. Thank you.
Thank you for writing what I believe is a thoroughly compelling, accurate, and reassuring analysis of the flaws of the ISL theory, While the present Conservative SCOTUS majority has certainly stretched and stressed judicial precedent and legal scholarship in recent rulings, I agree that the Moore v. Harper case is unlikely to produce the level of damage to the electoral process some headline writers are predicting. I also point out that the counsels of record in this case, Neal Katyal and Mark Elias are by far the most competent legal representatives one could imagine to take on defense of this case. Both have outstanding records in SCOTUS cases and are highly respected election law scholars even by Conservative legal experts.
I have recently been asked by a number of my Progressive activist friends why the January 6 Committee hearings and the compelling evidence of criminality they have revealed has not changed the views of Trump supporters. What, they ask me, will it take to change the minds of Trump supporters? Why do they continue to support him? Here are my own thoughts on that question.
I believe it is because his supporters covet similar power over others. They feel that they have lost influence and control as society has become more diverse and groups who formerly had little power have found agency and increased influence. They are not at all in favor of the equality of all. Rather they desire a world in which there are “real Americans” and “the others.” They wish to hold the power to decide who is in which of those groups and empower the “real Americans” with the ability to govern, to decide right and wrong, whose votes should count and whose should not, what children should be taught in public schools, what books should be available in libraries, who can marry or not, and what faiths are acceptable or not. It is all about power for oneself over the agency of others. It is not simply about admiring or support for Trump, they truly wish to hold the same type of power over others they see Trump desires or holds.
The biggest danger of Trump is that his narcissism is highly contagious and he is patient zero of a narcissism pandemic.
Jul 3, 2022·edited Jul 3, 2022Liked by Robert B. Hubbell
My musings during this Independence Day weekend is what would a new Constitution look like if we held a Constitution Convention this year which produced a document written with all the voices in the room - women, minorities, LGBTQ and even men. Who would be invited to be part of the deliberations of this Convention? What are the weaknesses in the current Constitution ... and its interpretation ... that the new Constitution must address? Like how do you allow minorities to have a voice without giving it veto power as we have in the Senate now. Are the states required to be democratic republics and what criteria would be used to prove that they were? Would it be a bicameral system? Would it promote some kind of nonpartisan system and get rid of the two party lesser of two evils system? Would we toy with a direct democracy in this digital age? How do we insure we don't become an oligarchic kleptocracy or a theocracy? Would we measure the success of our government by a Well Being Index? Would we avoid the corruption of money? What are the limits of states rights vs. federal rights? How do we assure an egalitarian form of government with fairness as a central tenet? How do we balance individual rights with the rights of others and the rights of states and the rights of the federal government? How do we encourage the AND style where we make bigger and better pies to share rather than the OR style of us vs them and someone loses because the pie is a fixed size? How do we become an exceptional and caring nation again? I'd even put in the question on what are the rights of sentient beings including cyber beings that will exist in the near future. And, how does one define sentient? What is happening now with our government at all levels right now is in some ways destroying the old so that we have a clean slate to create the new. We, the People, It's Up to US now, all of us this time.
My major question right now with the Supreme Court dismantling democracy and eliminating all but the barest amount of federal government and giving it all back to the states is what does the guarantee clause of the Constitution guarantee? Article IV Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. What is the contemporary and measurable meaning of Republic? Do the current minority rule red states still meet the by the people tenet of a republic? How does this get corrected? The Supreme Court throwing abortion back to the States so it is back to the People to determine if the height of hubris in the minority rule, gerrymandered, voter suppressed states.
My wife also remained Covid free when I got sick, and I was also blessed to have her care. Re Moore, I really appreciate your excellent analysis, and I am comforted by it (although I'm wondering if maybe you should be prioritizing rest right now?). I do harbor a fear that the Supreme Court may have become so corrupt that it is now capable of anything, but I am also aware that this fear is probably irrational. Still, I think the hysteria about Moore has a value, and it is this. It is accurate that the Republican party in its current state of decay would welcome finding a way to override the results of elections so it can seize power even if it loses. To the extent that Moore is seen as a symbol of this, it may help motivate Democrats, Independents, and Republicans who truly want to protect democracy, to vote in the midterm and 2024 elections. Republicans have become the party of death. Their abortion policy, gun policy, and climate policy are literally going to kill Americans. And their election policy threatens to kill our democracy. Hopefully we can rally around defeating the party of death.
Oh - and another comment about the attack of LGBTQ youth. I am a psychiatrist and see many adolescents and college kids who are gay. I am appalled by this callous attack. To state the obvious - these kids struggle and suffer with their identity and sexuality. It is better than it was when I was their age - but still poses formidable challenges. It is another instances of ignorance and cruelty - and as so many have said - these Republicans don't give a damn about the well being of children, but will go to the mat to fight for a fertilized egg.
Good to hear you are feeling better - and I'm with the readers who encourage more rest. I am constantly in awe of the depth and breadth of your coverage and appreciate you legal experience to be able to frame it. As I have commented before, that you write the equivalent of a college paper EACH day, with its requirements to read the news and then comment with a review of the laws is a remarkable feat - which we all value and appreciate.
Btw --- I did find the 538 piece about the possibilities of the Senate - and they do indeed think it is quite possible that the Dems will pick up 5 seats.
I also have been saving all your and Heather Cox Richardson's pieces for my grandchildren the oldest of whom is 8. When they are in high school or college, I think that these original writings of the period will be invaluable to them.
Being far from a lawyer, it appears to me that the 2013 Shelby County v. Holder decision opened the flood-gates to Eastman-like fever dreams. Segregation dreams are bubbling just below the surface in numerous states, many but not exclusively, states that were in the old Confederacy. It beggars the mind that in the 2020s for example, the Texas GOP would be working feverishly to disenfranchise the black vote in Houston and in other Democratic leaning districts. Count me discouraged.
Robert, Thanks for the clarity about the independent state legislature myth. I am breathing a little bit easier about the likely outcome on this particular case, but I listened to Ezra Klein's podcast from last Friday when he had an extended conversation with Kate Shaw entitled "The Single Best Guide I've Heard to the Supreme Court's Rightward Shift." It puts the recent spate of terrible decisions from the Court in context--and is well worth a listen. It certainly bolsters your argument that Democrats need to find a way to act to add more justices or otherwise reform the Court, which has objectively become a tool of the Republican Party. I've been thinking lately that adding two justices might be a target to shoot for. It would still leave the Court in conservative hands, but would be justifiable based on McConnell stealing two seats from the Dems and would leave Roberts in a position to provide at least a measure of temperance in the interest of rebuilding some level of public confidence in the institution.
Robert,
First, I am glad you are feeling better.
Second, I hope that your logical argument will prevail. My fear is that the majority, as in Dobbs, will not stick to the narrow issues presented and will go far afield to put a broader stamp on the case. There is no limit on the mischief these guys can do, even lying about facts as in the high school coach/religion case. My fear is that the court took the case with an agenda. The only question is how far it will go.
Stan
Wait! Wait! It is Saturday evening and it was this writer’s understanding that you were going to get rest as you dealt with COVID. Your good efforts are valued by most readers, certainly me. While this editions offers important information, might you want to think first of your health so your continued good efforts to offer readers the tools to make informed conclusions of their own? Where is your Managing Editor? It is time for her nurturing persona to kick in? Get some rest.
All readers of Robert Hubbell's Today's Edition should treat his disclaimer of constitutional law expertise as excessively modest. Tonight's newsletter offers a sharp, clear, concise explanation of "the Independent state legislature theory." And a theory without proof is clearly what it is, yet another pseudo-intellectual attempt by the right wing to achieve their desired ends through dubious--to say the least--means. The actions by SCOTUS this past week have caused me to change my prior opposition to any serious changes in the composition and rules regarding the Supreme Court. I now believe the strongest package of reforms must be initiated right after the November election, which I bravely believe will provide Pres. Biden with a Congress capable of passing something meaningful. The actions by the fraudulently-obtained reactionary majority on today's Court demand nothing less.
First. Whomever is writing to berate you, needs to find another target. This is not a competition to see who is smartest which is very subjective at best. We are in a fluid, dynamic time. Just share a view or thought without needing to prove superiority to Robert.
Second. The fact you are writing at all with covid is stunning. I am on vacation and can't keep up with it all. High five to Nurse Jill. What a time.
Robert, First and foremost, I am so pleased to learn that you’re feeling better. I also write to note, that while holding the House and picking up 2 Senate seats is critical, my thinking has somewhat broadened since pondering your deep dive into the meaning of the “independent state legislature” doctrine.
I better understand the importance of focusing on select states, specifically states contesting governorships, states’ Supreme Court, and Secretaries of State. I now recognize the challenge, essentially, is to prevent Republicans from attaining trifecta control—control of both legislative State Houses and the Governorship—thereby blocking Republicans from changing state election rules to change who can be in charge, how votes are counted, and how they’re certified, let alone changing how 2024 electors are awarded. Though the underlying objective is to try and protect the 2024 democratic process, clearly, the immediate work, at least partially, is about identifying issues that would move voters to vote who otherwise wouldn’t or that would dissuade Republicans from voting Republican.
Thank you, Robert, for clarifying Moore v. Harper and its limits. I'll remind everyone that in 2016 the Election Integrity Project said North Carolina could no longer be considered a democracy and on a par with Cuba, Venezuela, and Iran. https://www.independent.co.uk/news/world/americas/north-carolina-not-democracy-elections-cuba-iran-venezuela-gop-a7494561.html If you read the latest report from the Election Integrity Project the United States is now the lowest ranking with a score of 57 of the liberal democracies of the world and 15th out of the 29 countries in the Americas. https://www.electoralintegrityproject.com/globalreport2019-2021
Your email arrived in my inbox within seconds of a hair-raising doom and gloomer from Thom Hartman titled The Nightmare Scenario. Thank God you’re feeling well enough to have somehow intuited this. Your measured tone and reassurances are a blessing. Thank you.
Robert,
Thank you for writing what I believe is a thoroughly compelling, accurate, and reassuring analysis of the flaws of the ISL theory, While the present Conservative SCOTUS majority has certainly stretched and stressed judicial precedent and legal scholarship in recent rulings, I agree that the Moore v. Harper case is unlikely to produce the level of damage to the electoral process some headline writers are predicting. I also point out that the counsels of record in this case, Neal Katyal and Mark Elias are by far the most competent legal representatives one could imagine to take on defense of this case. Both have outstanding records in SCOTUS cases and are highly respected election law scholars even by Conservative legal experts.
I have recently been asked by a number of my Progressive activist friends why the January 6 Committee hearings and the compelling evidence of criminality they have revealed has not changed the views of Trump supporters. What, they ask me, will it take to change the minds of Trump supporters? Why do they continue to support him? Here are my own thoughts on that question.
I believe it is because his supporters covet similar power over others. They feel that they have lost influence and control as society has become more diverse and groups who formerly had little power have found agency and increased influence. They are not at all in favor of the equality of all. Rather they desire a world in which there are “real Americans” and “the others.” They wish to hold the power to decide who is in which of those groups and empower the “real Americans” with the ability to govern, to decide right and wrong, whose votes should count and whose should not, what children should be taught in public schools, what books should be available in libraries, who can marry or not, and what faiths are acceptable or not. It is all about power for oneself over the agency of others. It is not simply about admiring or support for Trump, they truly wish to hold the same type of power over others they see Trump desires or holds.
The biggest danger of Trump is that his narcissism is highly contagious and he is patient zero of a narcissism pandemic.
My musings during this Independence Day weekend is what would a new Constitution look like if we held a Constitution Convention this year which produced a document written with all the voices in the room - women, minorities, LGBTQ and even men. Who would be invited to be part of the deliberations of this Convention? What are the weaknesses in the current Constitution ... and its interpretation ... that the new Constitution must address? Like how do you allow minorities to have a voice without giving it veto power as we have in the Senate now. Are the states required to be democratic republics and what criteria would be used to prove that they were? Would it be a bicameral system? Would it promote some kind of nonpartisan system and get rid of the two party lesser of two evils system? Would we toy with a direct democracy in this digital age? How do we insure we don't become an oligarchic kleptocracy or a theocracy? Would we measure the success of our government by a Well Being Index? Would we avoid the corruption of money? What are the limits of states rights vs. federal rights? How do we assure an egalitarian form of government with fairness as a central tenet? How do we balance individual rights with the rights of others and the rights of states and the rights of the federal government? How do we encourage the AND style where we make bigger and better pies to share rather than the OR style of us vs them and someone loses because the pie is a fixed size? How do we become an exceptional and caring nation again? I'd even put in the question on what are the rights of sentient beings including cyber beings that will exist in the near future. And, how does one define sentient? What is happening now with our government at all levels right now is in some ways destroying the old so that we have a clean slate to create the new. We, the People, It's Up to US now, all of us this time.
My major question right now with the Supreme Court dismantling democracy and eliminating all but the barest amount of federal government and giving it all back to the states is what does the guarantee clause of the Constitution guarantee? Article IV Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. What is the contemporary and measurable meaning of Republic? Do the current minority rule red states still meet the by the people tenet of a republic? How does this get corrected? The Supreme Court throwing abortion back to the States so it is back to the People to determine if the height of hubris in the minority rule, gerrymandered, voter suppressed states.
My wife also remained Covid free when I got sick, and I was also blessed to have her care. Re Moore, I really appreciate your excellent analysis, and I am comforted by it (although I'm wondering if maybe you should be prioritizing rest right now?). I do harbor a fear that the Supreme Court may have become so corrupt that it is now capable of anything, but I am also aware that this fear is probably irrational. Still, I think the hysteria about Moore has a value, and it is this. It is accurate that the Republican party in its current state of decay would welcome finding a way to override the results of elections so it can seize power even if it loses. To the extent that Moore is seen as a symbol of this, it may help motivate Democrats, Independents, and Republicans who truly want to protect democracy, to vote in the midterm and 2024 elections. Republicans have become the party of death. Their abortion policy, gun policy, and climate policy are literally going to kill Americans. And their election policy threatens to kill our democracy. Hopefully we can rally around defeating the party of death.
Oh - and another comment about the attack of LGBTQ youth. I am a psychiatrist and see many adolescents and college kids who are gay. I am appalled by this callous attack. To state the obvious - these kids struggle and suffer with their identity and sexuality. It is better than it was when I was their age - but still poses formidable challenges. It is another instances of ignorance and cruelty - and as so many have said - these Republicans don't give a damn about the well being of children, but will go to the mat to fight for a fertilized egg.
Robert
Good to hear you are feeling better - and I'm with the readers who encourage more rest. I am constantly in awe of the depth and breadth of your coverage and appreciate you legal experience to be able to frame it. As I have commented before, that you write the equivalent of a college paper EACH day, with its requirements to read the news and then comment with a review of the laws is a remarkable feat - which we all value and appreciate.
Btw --- I did find the 538 piece about the possibilities of the Senate - and they do indeed think it is quite possible that the Dems will pick up 5 seats.
I also have been saving all your and Heather Cox Richardson's pieces for my grandchildren the oldest of whom is 8. When they are in high school or college, I think that these original writings of the period will be invaluable to them.
Thank you again Derek
Being far from a lawyer, it appears to me that the 2013 Shelby County v. Holder decision opened the flood-gates to Eastman-like fever dreams. Segregation dreams are bubbling just below the surface in numerous states, many but not exclusively, states that were in the old Confederacy. It beggars the mind that in the 2020s for example, the Texas GOP would be working feverishly to disenfranchise the black vote in Houston and in other Democratic leaning districts. Count me discouraged.
Nothing foggy about this piece. It was helpful, clarifying. Thanks. (Continue your recovery.)
Robert, Thanks for the clarity about the independent state legislature myth. I am breathing a little bit easier about the likely outcome on this particular case, but I listened to Ezra Klein's podcast from last Friday when he had an extended conversation with Kate Shaw entitled "The Single Best Guide I've Heard to the Supreme Court's Rightward Shift." It puts the recent spate of terrible decisions from the Court in context--and is well worth a listen. It certainly bolsters your argument that Democrats need to find a way to act to add more justices or otherwise reform the Court, which has objectively become a tool of the Republican Party. I've been thinking lately that adding two justices might be a target to shoot for. It would still leave the Court in conservative hands, but would be justifiable based on McConnell stealing two seats from the Dems and would leave Roberts in a position to provide at least a measure of temperance in the interest of rebuilding some level of public confidence in the institution.
Mark Secord, Marrowstone Island, WA