How a Fringe Legal Theory Became a Threat to Democracy

[icymist]

The Museum of the Albemarle, on the eastern shore of North Carolina, is a spacious building the color of sand and sea glass. It’s in Elizabeth City, about as far from the Research Triangle as Baltimore is from New York City, but you can get there and back in the same day if you know how to drive fast without getting pulled over. “There are a hundred counties in this state, and I’ve spent time in every one,” Sailor Jones, a democracy activist, told me this past fall, on his way to speak at the museum. He was a skillful multitasker—sipping from a huge fountain Coke, tweaking a Rihanna-heavy playlist, and taking call after call on speakerphone, all while bombing his Toyota 4Runner down an empty stretch of highway bisecting a cotton farm. Jones is forty-eight, with sandy hair and a round face; he grew up in northeastern North Carolina, a rural, working-class part of the state. “When I tell people I was born in a tobacco field, I’m only exaggerating, like, a tiny bit,” he said. He is white, but he’s from a county that is, like Elizabeth City, majority Black. “If you’re used to the powers that be either passively ignoring you or actively screwing you over, for generations, it’s natural to hear about some new nefarious thing they’re up to and think, Same shit, different day,” he said. “The challenge for us, messaging-wise, is to find a way to tell folks, You’re not wrong, but, also, this one really is different.”

“This one” was Moore v. Harper, a Supreme Court case that was set to be argued in December and resolved by the end of June. In 2021, with Tim Moore as the speaker of the North Carolina House, the majority-Republican legislature drew gerrymandered congressional maps—that is, even more egregiously gerrymandered than usual. Several voters (one of them named Becky Harper) and a handful of nonprofits (including Common Cause, where Jones works) sued to block the implementation of those maps, and the state Supreme Court ruled in their favor. The U.S. Supreme Court was asked to decide whether the legislature’s maps should stand—and, by extension, whether the state court had the power to review them at all. As with many Supreme Court cases, this is a narrow-sounding question that could have vast consequences. “It’s hard to overstate how wild it would be if this went the wrong way,” Marina Jenkins, the executive director of the National Democratic Redistricting Committee, told me.

...Akhil Amar, a law professor at Yale, is one of the most frequently cited legal scholars in the country. When it comes to the Supreme Court, he is an ur-institutionalist who can rhapsodize at length about the courtroom’s marble friezes, and who has long counted multiple Justices as personal friends. (A few months ago, on a podcast he hosts, he referred to Samuel Alito as “a principled person” and “one of the smartest lawyers I know.”) On the question of I.S.L.T., though, he is uncharacteristically cutting. In a recent debate at the Federalist Society, he conceded that the plain-text position sounded plausible on its face, but he described his own view as “clearly the better view for anyone who’s gone to law school and who has a brain.” Last year, he and his brother Vikram, the dean of the University of Illinois College of Law, published a law-review article called “Eradicating Bush-League Arguments Root and Branch,” positing that the Framers actually intended for “legislature” to mean a state’s entire lawmaking apparatus, including the judicial and executive branches. “This kind of thing happens in the Constitution all the time,” Vikram told me. (For example, the Constitution says that “New States may be admitted by the Congress,” but the process has always involved the President, and courts have weighed in, too.) Extreme proponents of I.S.L.T. maintain that the legislature’s power over elections is “plenary”—unconstrained by state courts. But the Amar brothers contend that there is no indication that this power was meant to be so absolute. “That’s just not how it works,” Vikram said.

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https://archive.ph/x7xMM

[rubbersole]

1. Shouldn't 9 (5 actually) unaccountable appointed individuals...

..tell 350 million citizens how to live? Framers were so quaint...

[FBaggins]

2. Not the best way to frame the debate perhaps...

… since the underlying question is whether 5 (3 actually) individuals should tell 11 million individuals how to live. Particularly when they are accountable to the voters and lost their jobs because of the decision.