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.
Hi, Stan. You raise a good question raised by many other readers. We should take some comfort from the question for review as articulated by the Court when it granted review (certiorari). The "question presented" per the Court's website (https://www.supremecourt.gov/qp/21-01271qp.pdf) is this:
Whether a State's judicial branch may nullify the regulations governing the
"Manner of holding Elections for Senators and Representatives . . . prescribed . . . by
the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations
of the state courts' own devising, based on vague state constitutional provisions
purportedly vesting the state judiciary with power to prescribe whatever rules it deems
appropriate to ensure a "fair" or "free" election.
Although the question seems to suggest which way the Court is leaning, the SCOPE of its review is limited to the question of whether the actions of state legislatures are subject to review by state courts.
I’m glad that’s the case. If this court played by the rules, what you quoted could limit the scope of the review. But this court doesn’t play by the rules.
In addition, the court’s statement leaves open the possibility that it could decide that a legislative decision after an election to reverse the election would be a manner prescribed by the legislature. Your earlier argument assumed that what the legislature does before an election is what matters. The constitution doesn’t say that, and this court won’t find something not in the constitution if doing so conflicts with its agenda.
Lord, I hope you’re right. But I won’t be confident until I see the ruling.
I’m with you Stan regarding the right wing zealots occupying the seats! While Mr. Hubbell presents a thorough analysis debunking the impact of the deranged Eastman’s theory, our problem is that logical reasoning does not exist amongst the court majority.
Robert refers to two amendments of the US Constitution, however the rogue court majority has created their own constitution. They serve for life unchecked!
At 79 years young I am an eternal optimist, however the court majority has recreated the legal equivalent of Sherman’s slash and burn campaign in the south during the civil war. Hopefully, like Sherman, they will not torch Raleigh NC the Capitol of the state!
I think that the lessons presented today will help us to determine if the SC opinion is just or another symptom of their rightwing focus. If it is just, then the opinion will be short and concise. If not, then I'm sure that the opinion will be lengthy and using argument from the 1700s as it's justification.
Jul 3, 2022·edited Jul 3, 2022Liked by Robert B. Hubbell
I completely agree. If the Radicals on the Supreme Court were abiding by the US Constitution, they would not have taken the case. It appears clear that the N. Carolina state constitution grants the State Supreme Court jurisdiction over the the redistricting process - federal or otherwise. However, they DID take the case because they DO HAVE an agenda: just as they malevolently exceeded the question of fetal viability in Hobbs, they plan to exceed the question of state legislative power in Moore v. Harper, returning power of elections to the States. Just as Republican State legislatures prepared "trigger" laws for Hobbs, they will prepare similar statutes for Moore v. Harper.
While we need to focus on the adding more seats to the Senate and House, just as importantly, we need to work hard on getting out the vote for Democrats and RINO's in State legislatures.
Stan, "mischief" is exactly what came to my mind; if the NC Legislature has already provided for court review, but now wants to ignore it, why do they find such a receptive audience in this Supreme (?) Court? This argument should be moot.
Also, Robert, please get better and stay well, with the help of your Managing Editor (I have her counterpart in my Firm Administrator).
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.
Hello! As we have moved into these new chapters, a good friend of mine, fairly elderly, remarked as you have, that Robert’s style has changed. I think I noticed such but I’ve recommended to her that she do as I do: when it’s available, listen to the audio version and Robert’s delivery is so superb and personable, like someone who stopped in for coffee and shares informed conversation… So that despite the intensity of the material, it’s palatable and then some, made quite clear and understandable because of how he writes and because of his delivery. So you might want to try that mode. I can relate to what you’re saying but thought I would share this recommendation.
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.
Agree that this is the core issue: 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.
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.
“How do we insure we don't become an oligarchic kleptocracy or a theocracy?”
By not knocking over the guardrails* of our existing Constitution to hold a well-intended progressively idealistic dream-filled constitutional convention. Getting rid of it to wipe the slate clean leaves a void of chaos, which is the objective of Putin and trumpers to make way for an authoritarian takeover. These great questions need to be channeled to law makers.
* as argued by Heather Cox Richardson in her Chat of 6/30/22
Ellie, This is a thought exercise primarily with the goal of figuring out what a Constitution written by all people involved would be rather than a patriarchal one written only by men or me. It would give us some specific goals to work for in amending the existing Constitution. Or, show that a new Constitution would be worth considering. And, we have a situation where the Congress is basically frozen and not doing its job. We also can no longer count on the Congress doing the will of the people because of large scale legalized corruption with money as free speech rather than buying elections. I also object to denying the People the right of a Constitutional Convention because it might get out of control. There are ways to limit a Constitutional Convention or there wouldn't be Republicans promoting a Constitutional Convention as they have here in Texas. Yes, it needs to be carefully done, but I don't see the foxes in Congress changing the laws for the chicken coop. We, the People, ALL of US this time. It is up to the us, the people.
Whenever I am tempted by thought exercises such as this, I remind myself that every journey must begin from where one stands at its beginning. We cannot imagine or wish for a departure point other than where we are at the start of that journey. Hence we must work within the realities of our present circumstances toward a destination we wish to reach. This is my problem with thought exercises that might ignore our present circumstances and the fellow passengers who would by definition need to accompany us on such a journey. We cannot wish away or ignore those fellow passengers, particularly as many of them seem to wish to have a considerable say in the chosen destination. In fact, many seem to be reaching for the proverbial steering wheel like that orange complexioned chap with the bad hair who thinks he should be allowed to drive from the back seat.
Bruce, Let me share one of my life lessons -- literally a life or death lesson in this case. In 2013, I called an ambulance to take me to the hospital very short of breath with the least amount of movement. The first ED doctor diagnosed it correctly as a pulmonary embolism. The next shift ED doctor read the chart and didn't put together that this was a massive PE meaning I was in critical condition and sudden death could happen at any moment. I was so scared to move because it caused extreme respiratory distress that I had every incentive to stay perfectly still. The nurse came in and wrote in my medical record "No distress noted" and "turned the lights off for comfort". I hate those three words more than anything now "no distress noted". That's where I see so many people now. While a number of people are sounding the alarm, most people are not noting what a existential crisis this is. My thought exercise is actually trying to take in everyone's perspective into focus so we can come up with better solutions for all of us. We need visionary leadership and I don't see that person yet. Although the person I'm most impressed with is Stacey Abrams. I always hear a President when I hear her speak. We need a movement, not a list of what is wrong but a set of implementable goals toward a vision. Someone with "I have a dream."
I do agree with everything you say and the essential point you are making. My original comment was intended to alert all to focus on an achievable path forward from where we are planning it one step at a time rather than trying to imagine ourselves already at an intended destination.
The back seat driver analogy also was to remind all that we have to deal somehow with all those who wish to take a different journey and also have a very different destination in mind. As much as many of us would wish to they cannot be brushed aside or disregarded.
I have come to regard many of them as uneducable but recognize the best we may be able to eventually hope for is they become baggage or the freight we will have to carry along on the journey.
I continue to hope someone will sedate that chap in the back seat who wishes to take the wheel. However, I am realist enough to know there are others equally unfit to drive who would like to take his place and are just as insistent on being behind the wheel.
So, Cathy, how did your caregivers at the hospital move beyond the "no distress noted" note in your chart to deal with that pulmonary embolism? (Which we're all thankful they did.)
Hi Mim, To keep it short, the ED doctor transferred me to a hospital room in FAIR condition (I was CRITICAL). The movement of transferring me to the hospital bed triggered a syncope - aura, all systems in my body shutting down at once, unconscious with convulsions, blood pressure measured at 80 over 18 - was diagnosed as a bit of dehydration rather than what it really was - extrinsic cardiogenic shock - so they moved me two rooms closer to the nurses' station! Had a very bad and lonely night until they took blood tests at 5 a.m. and found several of my blood gases were critical and finally admitting I belonged in the ICU. The nurse/angel I saw when I woke up from the syncope was in the ICU when I arrived and she went pale as a ghost when I recognized her. In the ICU the right things finally happened and Dr. Deborah Vasquez saved my life by giving me the clot busting drug tPA ($17,000 for 100 mg) while my souls (yes,plural which I don't have an explanation for) were telling me we'd have to go soon if something didn't change. Here's the case study I created over the next year after studying the 546 pages of nurses' notes and watching videos made to help physicians' review for their exams and presented to the Director of Quality and the Physicians' Quality Adviser of the hospital. A year later they had done nothing about my recommendations. To be fair, this wasn't just a problem at this one hospital -- it is systemic in our medical systems world wide which I found out by take the massive online course with Dr. Peter Pronovost on The Science of Safety in Healthcare. In 2008 he was named one of the 100 most influential people in the world by Time magazine for his work in safety in healthcare which has saved 10,000s of lives.
I call this the damped oscillator approach. You look at things at a high level, then go back to the existing situation and its details, then back to the higher level, lower level until your find the sweet spot. https://en.m.wikipedia.org/wiki/File:Damped_oscillations.gif I believe we are so far into the weeds that we aren't seeing the broader level of concern here. Most politicians can't see beyond the end of the next election. I'm looking for the visionary who has a picture of a more perfect union in mind. Of course, one of my management rules is no decision is made until you know how to implement it. Where is the visionary leader we need? We're turning off all the lights and groping hopefully forward with no compass.
In addition, if we held a Constitutional Convention to address these changes, I'm sure the Republicans would be quite enthusiastic to present their changes, also. So it's a dangerous idea to blindly hold a CC and expect Republicans to take it over. Remember, they don't listen, lie, lie, cheat, and use aggression to get their way. And, the Democrats haven't yet figured out how to overcome the new Republican bully tactics.
Hi, Christi. Your comments raise a point of concern frequently expressed by readers. Many readers receive fundraising emails from democratic organizations that say something to the effect that Republicans are only three or four states away from being able to call a constitutional convention. We should not fear a constitutional convention. Here is my thinking:
A constitutional convention can be convened on application of 2/3 of the states-- or 34 states. While it's remotely possible, it's highly unlikely that 34 states would ever agree to a constitutional convention. But let's assume for purpose of argument that 34 states do call for a constitutional convention.
Any proposed constitutional amendment generated by a constitutional convention must be ratified by 3/4 of the states-- or 38-- before it goes into effect. Because Democrats control all or part of the legislatures of 23 states, no constitutional amendment could ever go into effect unless it received support from about a dozen states controlled in whole or in part by Democrats.
So, there is a greater likelihood that Republicans could call a constitutional convention, but a zero chance that they could pass constitutional amendments without significant support from state legislatures controlled in whole or in part by Democrats.
There is a precedent in US history on a fresh start. The Articles of Confederation of 1777 were not working and the Continental Congress which gave us the current Constitution was an excellent result. It saved the country from dissolving into bickering states. Now we're seeing this happen again. The Supreme Court is making no use of the Constitution in its rulings now. I love the quote by Benjamin Franklin when leaving the Continental Congress and being asked what kind of government do we have: "A republic if we can keep it." We're at the point where we're not keeping it unless extraordinary events start happening that unites the People and fair elections abort members of Congress who are obstructing that branch of government. We have two branches of government that aren't governing for the People and one of them trying to decimate the third. This is a thought exercise that I believe we need to have to have a vision for the future we can work toward.
In a recent NPR radio discussion of the Constitution, one person on the panel noted that in South Africa after apartheid had been defeated, they wrote a NEW constitution with input from all sectors of the population. This person suggested that after the civil war in our country our leaders should have done the same, not amend an inadequate and archaic document!
Yes, I'd love to see changes made to equality, the use of male pronouns, and support to uphold the rights of all persons once they take a breath. But, the Republicans would like to see the opposite of my desires.
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.
This dismantling of democracy by the SC could actually weaken its oversight. With states making all the decisions there is no need for federal interpretation for anything. I wonder if they have given that any thought?
Good point. Another example I should have included is this: Suppose a state legislature says that Republicans can vote by mail or in person, but Democrats must show up on election day to vote. Then let's suppose that a state court invalidates that method for selecting electors on the grounds that it violates the state constitution's Equal Protection Clause and the federal Equal Protection Clause. Is SCOTUS really going to say that a state court cannot restrain the obviously unconstitutional acts of the state legislature?
The sad or frustrating part is that with this makeup of SCOTUS, we can’t rely on a fair answer. They’ll find some archaic action to support anything at this point.
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.
Jordan, thank you for your concern. I am entering my 6th day of quarantine and I have plenty of time on my hands. Not to worry, I am following the instructions of my managing editor.
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.
Hi, Mark. Thanks for your comments. As to the size of the Supreme Court, it is helpful to remember that the court originally had six members when the United States consisted of 13 States and approximately 4 million people. We are now 50 states and 320 million people. Moreover, there are approximately 400 intermediate judges in the courts of appeal, and thousands of District Court judges. On the basis of growth alone, the Supreme Court should be many times larger than its current size. I think it would be completely reasonable to add 5 justices at this point in our history.
I admire your confidence in Roberts, but do not believe that he has demonstrated. A reasonable basis for Americans. To believe that he has the fortitude to reform the court.
Yes, a very informative podcast with Kate Shaw, outlining the direction this SCOTUS has taken since Bush v. Gore and also how Obergefell may fair with this court now that they seem so happy to ignore precedent.
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
Hi, Stan. You raise a good question raised by many other readers. We should take some comfort from the question for review as articulated by the Court when it granted review (certiorari). The "question presented" per the Court's website (https://www.supremecourt.gov/qp/21-01271qp.pdf) is this:
Whether a State's judicial branch may nullify the regulations governing the
"Manner of holding Elections for Senators and Representatives . . . prescribed . . . by
the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations
of the state courts' own devising, based on vague state constitutional provisions
purportedly vesting the state judiciary with power to prescribe whatever rules it deems
appropriate to ensure a "fair" or "free" election.
Although the question seems to suggest which way the Court is leaning, the SCOPE of its review is limited to the question of whether the actions of state legislatures are subject to review by state courts.
Robert,
I’m glad that’s the case. If this court played by the rules, what you quoted could limit the scope of the review. But this court doesn’t play by the rules.
In addition, the court’s statement leaves open the possibility that it could decide that a legislative decision after an election to reverse the election would be a manner prescribed by the legislature. Your earlier argument assumed that what the legislature does before an election is what matters. The constitution doesn’t say that, and this court won’t find something not in the constitution if doing so conflicts with its agenda.
Lord, I hope you’re right. But I won’t be confident until I see the ruling.
Stan
I’m with you Stan regarding the right wing zealots occupying the seats! While Mr. Hubbell presents a thorough analysis debunking the impact of the deranged Eastman’s theory, our problem is that logical reasoning does not exist amongst the court majority.
Robert refers to two amendments of the US Constitution, however the rogue court majority has created their own constitution. They serve for life unchecked!
At 79 years young I am an eternal optimist, however the court majority has recreated the legal equivalent of Sherman’s slash and burn campaign in the south during the civil war. Hopefully, like Sherman, they will not torch Raleigh NC the Capitol of the state!
I think that the lessons presented today will help us to determine if the SC opinion is just or another symptom of their rightwing focus. If it is just, then the opinion will be short and concise. If not, then I'm sure that the opinion will be lengthy and using argument from the 1700s as it's justification.
I completely agree. If the Radicals on the Supreme Court were abiding by the US Constitution, they would not have taken the case. It appears clear that the N. Carolina state constitution grants the State Supreme Court jurisdiction over the the redistricting process - federal or otherwise. However, they DID take the case because they DO HAVE an agenda: just as they malevolently exceeded the question of fetal viability in Hobbs, they plan to exceed the question of state legislative power in Moore v. Harper, returning power of elections to the States. Just as Republican State legislatures prepared "trigger" laws for Hobbs, they will prepare similar statutes for Moore v. Harper.
While we need to focus on the adding more seats to the Senate and House, just as importantly, we need to work hard on getting out the vote for Democrats and RINO's in State legislatures.
Stan, "mischief" is exactly what came to my mind; if the NC Legislature has already provided for court review, but now wants to ignore it, why do they find such a receptive audience in this Supreme (?) Court? This argument should be moot.
Also, Robert, please get better and stay well, with the help of your Managing Editor (I have her counterpart in my Firm Administrator).
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.
Hello! As we have moved into these new chapters, a good friend of mine, fairly elderly, remarked as you have, that Robert’s style has changed. I think I noticed such but I’ve recommended to her that she do as I do: when it’s available, listen to the audio version and Robert’s delivery is so superb and personable, like someone who stopped in for coffee and shares informed conversation… So that despite the intensity of the material, it’s palatable and then some, made quite clear and understandable because of how he writes and because of his delivery. So you might want to try that mode. I can relate to what you’re saying but thought I would share this recommendation.
Listening to Robert really is best.
Thank you Carole. My thoughts exactly, on both your first and second points.
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.
Agree that this is the core issue: 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.
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.
“How do we insure we don't become an oligarchic kleptocracy or a theocracy?”
By not knocking over the guardrails* of our existing Constitution to hold a well-intended progressively idealistic dream-filled constitutional convention. Getting rid of it to wipe the slate clean leaves a void of chaos, which is the objective of Putin and trumpers to make way for an authoritarian takeover. These great questions need to be channeled to law makers.
* as argued by Heather Cox Richardson in her Chat of 6/30/22
Ellie, This is a thought exercise primarily with the goal of figuring out what a Constitution written by all people involved would be rather than a patriarchal one written only by men or me. It would give us some specific goals to work for in amending the existing Constitution. Or, show that a new Constitution would be worth considering. And, we have a situation where the Congress is basically frozen and not doing its job. We also can no longer count on the Congress doing the will of the people because of large scale legalized corruption with money as free speech rather than buying elections. I also object to denying the People the right of a Constitutional Convention because it might get out of control. There are ways to limit a Constitutional Convention or there wouldn't be Republicans promoting a Constitutional Convention as they have here in Texas. Yes, it needs to be carefully done, but I don't see the foxes in Congress changing the laws for the chicken coop. We, the People, ALL of US this time. It is up to the us, the people.
Whenever I am tempted by thought exercises such as this, I remind myself that every journey must begin from where one stands at its beginning. We cannot imagine or wish for a departure point other than where we are at the start of that journey. Hence we must work within the realities of our present circumstances toward a destination we wish to reach. This is my problem with thought exercises that might ignore our present circumstances and the fellow passengers who would by definition need to accompany us on such a journey. We cannot wish away or ignore those fellow passengers, particularly as many of them seem to wish to have a considerable say in the chosen destination. In fact, many seem to be reaching for the proverbial steering wheel like that orange complexioned chap with the bad hair who thinks he should be allowed to drive from the back seat.
Bruce, Let me share one of my life lessons -- literally a life or death lesson in this case. In 2013, I called an ambulance to take me to the hospital very short of breath with the least amount of movement. The first ED doctor diagnosed it correctly as a pulmonary embolism. The next shift ED doctor read the chart and didn't put together that this was a massive PE meaning I was in critical condition and sudden death could happen at any moment. I was so scared to move because it caused extreme respiratory distress that I had every incentive to stay perfectly still. The nurse came in and wrote in my medical record "No distress noted" and "turned the lights off for comfort". I hate those three words more than anything now "no distress noted". That's where I see so many people now. While a number of people are sounding the alarm, most people are not noting what a existential crisis this is. My thought exercise is actually trying to take in everyone's perspective into focus so we can come up with better solutions for all of us. We need visionary leadership and I don't see that person yet. Although the person I'm most impressed with is Stacey Abrams. I always hear a President when I hear her speak. We need a movement, not a list of what is wrong but a set of implementable goals toward a vision. Someone with "I have a dream."
Cathy,
I do agree with everything you say and the essential point you are making. My original comment was intended to alert all to focus on an achievable path forward from where we are planning it one step at a time rather than trying to imagine ourselves already at an intended destination.
The back seat driver analogy also was to remind all that we have to deal somehow with all those who wish to take a different journey and also have a very different destination in mind. As much as many of us would wish to they cannot be brushed aside or disregarded.
I have come to regard many of them as uneducable but recognize the best we may be able to eventually hope for is they become baggage or the freight we will have to carry along on the journey.
I continue to hope someone will sedate that chap in the back seat who wishes to take the wheel. However, I am realist enough to know there are others equally unfit to drive who would like to take his place and are just as insistent on being behind the wheel.
So, Cathy, how did your caregivers at the hospital move beyond the "no distress noted" note in your chart to deal with that pulmonary embolism? (Which we're all thankful they did.)
Hi Mim, To keep it short, the ED doctor transferred me to a hospital room in FAIR condition (I was CRITICAL). The movement of transferring me to the hospital bed triggered a syncope - aura, all systems in my body shutting down at once, unconscious with convulsions, blood pressure measured at 80 over 18 - was diagnosed as a bit of dehydration rather than what it really was - extrinsic cardiogenic shock - so they moved me two rooms closer to the nurses' station! Had a very bad and lonely night until they took blood tests at 5 a.m. and found several of my blood gases were critical and finally admitting I belonged in the ICU. The nurse/angel I saw when I woke up from the syncope was in the ICU when I arrived and she went pale as a ghost when I recognized her. In the ICU the right things finally happened and Dr. Deborah Vasquez saved my life by giving me the clot busting drug tPA ($17,000 for 100 mg) while my souls (yes,plural which I don't have an explanation for) were telling me we'd have to go soon if something didn't change. Here's the case study I created over the next year after studying the 546 pages of nurses' notes and watching videos made to help physicians' review for their exams and presented to the Director of Quality and the Physicians' Quality Adviser of the hospital. A year later they had done nothing about my recommendations. To be fair, this wasn't just a problem at this one hospital -- it is systemic in our medical systems world wide which I found out by take the massive online course with Dr. Peter Pronovost on The Science of Safety in Healthcare. In 2008 he was named one of the 100 most influential people in the world by Time magazine for his work in safety in healthcare which has saved 10,000s of lives.
https://www.slideshare.net/CathyLearoyd/prmc-case-study-no-distress-noted-one-patients-perspective-on-peterson-regional-medical-center
I call this the damped oscillator approach. You look at things at a high level, then go back to the existing situation and its details, then back to the higher level, lower level until your find the sweet spot. https://en.m.wikipedia.org/wiki/File:Damped_oscillations.gif I believe we are so far into the weeds that we aren't seeing the broader level of concern here. Most politicians can't see beyond the end of the next election. I'm looking for the visionary who has a picture of a more perfect union in mind. Of course, one of my management rules is no decision is made until you know how to implement it. Where is the visionary leader we need? We're turning off all the lights and groping hopefully forward with no compass.
I do like the back seat driver analogy!
In addition, if we held a Constitutional Convention to address these changes, I'm sure the Republicans would be quite enthusiastic to present their changes, also. So it's a dangerous idea to blindly hold a CC and expect Republicans to take it over. Remember, they don't listen, lie, lie, cheat, and use aggression to get their way. And, the Democrats haven't yet figured out how to overcome the new Republican bully tactics.
Hi, Christi. Your comments raise a point of concern frequently expressed by readers. Many readers receive fundraising emails from democratic organizations that say something to the effect that Republicans are only three or four states away from being able to call a constitutional convention. We should not fear a constitutional convention. Here is my thinking:
A constitutional convention can be convened on application of 2/3 of the states-- or 34 states. While it's remotely possible, it's highly unlikely that 34 states would ever agree to a constitutional convention. But let's assume for purpose of argument that 34 states do call for a constitutional convention.
Any proposed constitutional amendment generated by a constitutional convention must be ratified by 3/4 of the states-- or 38-- before it goes into effect. Because Democrats control all or part of the legislatures of 23 states, no constitutional amendment could ever go into effect unless it received support from about a dozen states controlled in whole or in part by Democrats.
So, there is a greater likelihood that Republicans could call a constitutional convention, but a zero chance that they could pass constitutional amendments without significant support from state legislatures controlled in whole or in part by Democrats.
This answer is a great relief. Thank you!
There is a precedent in US history on a fresh start. The Articles of Confederation of 1777 were not working and the Continental Congress which gave us the current Constitution was an excellent result. It saved the country from dissolving into bickering states. Now we're seeing this happen again. The Supreme Court is making no use of the Constitution in its rulings now. I love the quote by Benjamin Franklin when leaving the Continental Congress and being asked what kind of government do we have: "A republic if we can keep it." We're at the point where we're not keeping it unless extraordinary events start happening that unites the People and fair elections abort members of Congress who are obstructing that branch of government. We have two branches of government that aren't governing for the People and one of them trying to decimate the third. This is a thought exercise that I believe we need to have to have a vision for the future we can work toward.
Thank you for this response!
In a recent NPR radio discussion of the Constitution, one person on the panel noted that in South Africa after apartheid had been defeated, they wrote a NEW constitution with input from all sectors of the population. This person suggested that after the civil war in our country our leaders should have done the same, not amend an inadequate and archaic document!
Yes, I'd love to see changes made to equality, the use of male pronouns, and support to uphold the rights of all persons once they take a breath. But, the Republicans would like to see the opposite of my desires.
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.
This dismantling of democracy by the SC could actually weaken its oversight. With states making all the decisions there is no need for federal interpretation for anything. I wonder if they have given that any thought?
Good point. Another example I should have included is this: Suppose a state legislature says that Republicans can vote by mail or in person, but Democrats must show up on election day to vote. Then let's suppose that a state court invalidates that method for selecting electors on the grounds that it violates the state constitution's Equal Protection Clause and the federal Equal Protection Clause. Is SCOTUS really going to say that a state court cannot restrain the obviously unconstitutional acts of the state legislature?
The sad or frustrating part is that with this makeup of SCOTUS, we can’t rely on a fair answer. They’ll find some archaic action to support anything at this point.
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.
Jordan, thank you for your concern. I am entering my 6th day of quarantine and I have plenty of time on my hands. Not to worry, I am following the instructions of my managing editor.
As long as you are listening to her, I am confident you are taking proper care!
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.
Derek, thank you for your support for LGBTQ youth. This is a very difficult time for them and they deserve all of the love and support we can provide.
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.
Agree 100% re Shelby County. It has been the root cause of much of our current political instability.
I just don’t get Thomas
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
Hi, Mark. Thanks for your comments. As to the size of the Supreme Court, it is helpful to remember that the court originally had six members when the United States consisted of 13 States and approximately 4 million people. We are now 50 states and 320 million people. Moreover, there are approximately 400 intermediate judges in the courts of appeal, and thousands of District Court judges. On the basis of growth alone, the Supreme Court should be many times larger than its current size. I think it would be completely reasonable to add 5 justices at this point in our history.
I admire your confidence in Roberts, but do not believe that he has demonstrated. A reasonable basis for Americans. To believe that he has the fortitude to reform the court.
Yes, a very informative podcast with Kate Shaw, outlining the direction this SCOTUS has taken since Bush v. Gore and also how Obergefell may fair with this court now that they seem so happy to ignore precedent.