In the Supreme Court, will cynicism be the mother of optimism?

The Court seems unlikely to upend democracy - but this reason may surprise you

Today the Supreme Court will hear oral argument in a case of Moore v. Harper. This case has concerns the independent state legislature doctrine, and has inspired a huge amount of commentary about its implications for democracy. My own thoughts were published last Friday in the Washington Post. I will come back to that.

But first, let me say that I believe that much commentary is somewhat misguided - for noble reasons. Let me draw upon my home discipline of neuroscience.

We are storytelling animals. When we talk about why we do things, we usually give cognitive reasons: we choose what to have for dinner, where to go to school, where to live, and who to marry. But empirically, those reasons often arise after the fact. Conversely, at the moment our brains become committed to a decision, we are often unable to describe our motivations or what our ultimate choice will be. Instead, our internal narrators tell a story about what we’re going to do. That story can come before or after the true moment of decision – and miss the real reasons.

Of course, we can also give different reasons on purpose.

The child at the reins

However, the real drivers are based not on deliberation, but on emotional impulses and other hidden drives. An analogy that often gets made is that of a runaway stagecoach, with a child on top holding the reins. The child thinks he is in charge, but it’s really the horses.

Who are the horses here?

In the case of the independent state legislature doctrine, I would say that the central consideration is power. In recent decades, the doctrine was originally reanimated for purposes of dealing with the Presidential election of 2000. In Bush v. Gore, Chief Justice Rehnquist cited constitutional authority to the effect that the Florida state legislature had ultimate authority over federal elections - and therefore could award their state’s electors to George W. Bush. In that 5-4 decision, the court divided precisely along conservative and liberal lines. 

Now apply the same power-based reasoning to Moore v. Harper. Much commentary comes from an admirable place: discussion of long-standing principles in which state courts, laws, and governors ought to be able to constrain a legislature’s runaway power, which the ISL doctrine would disrupt. Or perhaps, according to its proponents, the doctrine takes us back to a basic definition of the word “legislature.” Framed this way, the doctrine is fundamental to how our democracy is constructed.

But now think at a different level. In the current case, who wins power? Who will be able to gerrymander? And finally, who will gain power in Congress, and control the agenda and laws under which we live? As I indicated on Friday, the answer may surprise you.

Logical readings point to the likelihood that logic will not come into play

In any logical reading of the doctrine, some constraint would be generally lifted on the power of state legislatures. Could the court choose a logical reading that does not decrease the balance of power in a manner the majority does not want, either for redistricting or for the 2024 election?

I listed three readings: (1) eliminate the governor’s veto, (2) eliminate state court review under state laws/constitutions, or (3) eliminate independent commissions.

Earlier this year, the court declined to take up a case that tested reading #1, in the Pennsylvania case of Costello v. Carter. It would have freed the legislature in Pennsylvania, but that legislature has changed partisan control. It might have removed Governor DeSantis’s veto in Florida, but his map is likely to give Republican four extra seats in the future. These events would advantage Democrats.

The current case concerns reading #2, as applied to North Carolina’s Congressional districts. If such a reading were applied to New York, it would potentially liberate the Democratic legislature to undo a court-drawn map that helped Republicans. Furthermore, North Carolina Supreme Court swung to the right in November (state Supreme Court justices there are elected). No matter how the U.S. Supreme Court rules, the legislature will face a more sympathetic court with their next map. So the 2024 North Carolina Congressional map no longer rides on this case. The principal consequence might be in New York, again helping Democrats.

In some broader scenario, reading #3 might come into play, by abolishing independent commissions that take the redistricting power away from legislatures. Justice Roberts argued vociferously against such commissions in a 2015 Arizona case, citing the concept of an independent legislature. But in 2019, he wrote more favorably about such commissions in the Rucho v. Common Cause decision, concerning partisan gerrymandering. Indeed, the general upshot of that case was to turn everything over to states. Independent commissions are in place in California and Michigan, where Democrats control government. I suggest that independent commissions are now safe, on the grounds of power.

When logic fails, what is left?

In the absence of a palatable logical interpretation, the Court could rule for the traditional interpretation of “legislature,” which traditionally has contained the entire legislative process, including governors and start courts. They could find some other interpretation. Or…they could do something not involving quite as much logic. 

Several recent rulings go down this path. They have names like the “major questions doctrine,” which you can read about on some excellent law blogs. The practical outcome is that the Supreme Court is starting to reserve for itself the power to act on a case-by-case basis. That outcome allows them to keep their powder dry for intervening in 2024, if and when election disputes arise.  In some sense, that’s a good outcome because it is less likely to do long-term damage to our system of state and federal regulation of elections.

I make no prediction about how the court will eventually rule. But I will say that either a ruling that rejects the independent state legislature doctrine, or a narrow ruling that allows the court latitude in the future, would be consistent with motivations founded in power - and arguably, a relatively good outcome for democracy in its current condition.