Supreme antihero 202012/27/2023 ![]() ![]() The court’s decision makes clear that the elections clause does not liberate state legislatures from state constitutions and state law, but also that federal courts must not abandon their duty to exercise judicial review. This decision is hardly the silver bullet antidote to take down this dangerous zombie notion once and for all. Buried within the details of this decision, as well as a short concurrence by Kavanaugh, are the seeds of future cases to come. And it could have removed state courts, constitutions, governors and potentially even independent redistricting commissions and ballot initiatives as any meaningful check on runaway legislatures.īut while the headlines proclaim victory for American democracy, and supreme court reporters hoist the chief justice back on their shoulders as a great centrist hope, it’s far too soon to celebrate. Taken to its extreme – as seems to be the practice in so many conservative state legislatures these days – the ISL theory could have handed state legislatures, many already deeply gerrymandered and beyond the control of state voters, dangerous unchecked powers with regard to election certification and presidential electors. It’s good news and a welcome sigh of relief. “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” Roberts wrote, in a decision joined by the court’s three liberals and justices Brett Kavanaugh and Amy Coney Barrett. The decision, written by Chief Justice John Roberts, makes it clear that the constitution’s elections clause does not carve out an exception to the fundamental principle of judicial review. This theory, spawned from a footnote in the then Chief Justice William Rehnquist’s concurrence in Bush v Gore, and nurtured for two decades in the hothouse of conservative legal academia, lacks any grounding in American history, represents a terrifying threat to elections as we know them, and should never have made it this far in the courts. ![]()
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