REJOICE! THE SUPREME COURT MIGHT HAVE DONE ANOTHER TERRIBLE THING. IT DIDN’T
THIS US SUPREME COURT at twilight in 2011. CREDIT: Joe Ravi, Creative Commons license CC-BY-SA 3.0,
IT COULD TURN OUT THAT Tuesday, June 27, was the happiest day of the year. That was the day that a political disaster that imperiled democracy didn’t happen. The U.S. Supreme Court – more commonly, “The Bonkers Court” - decisively rejected a right-wing theory that could have destroyed the country’s elections. The concept is known as the “independent state legislature theory,” which says that a preposterous misreading of the U.S. Constitution gives state legislatures virtual exclusive control over how elections are handled, with no other branch of state government – including courts – allowed a say. At it’s worst, it means that a state legislature can create its own slate of electors to choose presidents, one of the ploys that Trump and his insurrectionist cronies tried to use to install Trump in a second term, overriding Joe Biden’s decisive victory in 2020. Against many people’s expectations, the Supreme Court, in a 6 to 3 decision, said nothing doing. You could hear a sigh of relief sweep across the nation. The New York Times announced the decision with this giant headline: SUPREME COURT REJECTS THEORY THAT WOULD HAVE TRANSFORMED AMERICAN ELECTIONS Just how frightened people were by the chance that the Supreme Court would rule the other way was this statement by retired federal appeals court judge Michael Luttig, a conservative, according to the Associated Press: “This is the single most important case on American democracy – and for American democracy – in the nation’s history.”
HERE'S HOW THE WACKO THEORY WORKS. It’s based on an absurd reading of Article 1, Section 4, of the Constitution. The text: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the Places of chusing Senators.” The operative word here is “Legislature” (and you thought it was “chusing”). Republican right-wingers contend that because the clause doesn’t mention any other unit of state government than the “Legislature thereof,” that the legislature thereof has exclusive power to dictate the terms of an election. Which ignores how American government – and its system of checks and balances between the competing legislative, court and executive branches – actually works. Common sense says baloney, but in recent years, the Supreme Court and its right-wing majority, has been feasting on a deadly diet of unhealthy thoughts, the most important example being its decision overturning the half-century right to abortion. So, there was good reason to be terrified that the court would do something similar in a North Carolina case about gerrymandering voting districts. The possibility of a frightening outcome hung over the nation for a year. But it didn’t happen. Here’s how Chief Justice John G. Roberts Jr. wrote the decision: “We are asked to decide whether the Elections Clause carves out an exception to this basic principle (courts’ authority to weigh in on legislative actions). We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” When you think about it, asking the highest court in the land to rule that any courts, including state courts, don’t have the power to rule on any aspect of law, is absurd. The last thing a court is likely to do is hand over its authority to another branch of government. “That’s right, folks, we’re irrelevant.” Still, three of the nine justices voted the wrong way: Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.
INCIDENTALLY, in the arcane way judges use historical references to support their rulings, the Roberts’ decision mentions my state of Rhode Island – twice:
“Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review. In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor ‘the principles of the constitution in preference to any acts of the General Assembly.’ Varnum won, to the dismay of the State’s legislature, which replaced four of the five judges involved…
“…The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He lauded the Rhode Island judges ‘who refused to execute an unconstitutional law,’ lamenting that the state’s legislature then ‘displaced’ them to substitute others ‘who would be willing instruments of the wicked & arbitrary plans of their masters.’ “ I mention this because Rhode Island is the best place on earth to live, despite its often-ridiculed status as the tiniest state in terms of land-mass, its well-deserved reputation for public corruption and its always struggling economy. Anything that gives Rhode Island a pat on the back, even by a conservative Supreme Court chief justice, is appreciated.
AS I'M WRITING THIS - the day after the decision was announced – the case of Moore v. Harper – has virtually vanished from the major news websites. This is understandable. There’s not much staying power for a story about something that didn’t happen. The bomb didn’t go off. The assassination conspiracy was averted. The sprinkler system worked. The Klondike bar didn’t melt. And there are plenty of nightmares ahead. Donald Trump is polling ahead or nearly equal to Joe Biden. (This is impossible to comprehend). The Supreme Court has two more days in this session to issue awful decisions on remaining cases. Millions of Americans are trying to survive a terrible heat wave. But there’s lasting joy in this tiny slice of the American seashore, a state whose slogan is “Hope,” and the excitement is going to stay with me next week, through Independence Day next month, and into Rhode Island’s unique Victory Day holiday (the second Monday of August, marking the end of World War II), and through Christmas and New Year’s Day and maybe for months beyond. A terrible thing might have happened. And it didn’t.
I'VE BEEN a reporter and writer for 58 years, long enough to have learned that journalists don't know very much, although I've met some smart ones. Mainly, what reporters know comes from asking other people questions and fretting about the answers. This blog is a successor to one inspired by our dog, Phoebe, who was smart, sweet and the antithesis of Donald Trump. She died Feb. 3, and I don't see getting over that very soon. Occasionally, I may try to reach her via cell phone.