If you’re worried about a rogue GOP Supreme Court Justice, who has taken hundreds of thousands in bribes — perhaps millions — and is married to an ardent, white-supremacist election-denier, but unbelievably claims he never discusses it with her, you ain’t seen nothin’ yet.
If you are concerned about GOP election deniers trying to foist a lying, criminal traitor on America to be the President of the United States, again, you ain’t seen nothin’ yet.
If you were shocked to see the President of the United States encourage a mob to overturn America’s election by brute force while he did nothing to stop it, and then you read that an entire political party denies it all ever happened — you ain’t seen nothin’ yet.
Here is the latest Republican Party’s plan to destroy American democracy. And I’m not exaggerating.
In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.”
If the Court concludes that there is such a doctrine, it will confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states.
It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.
The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election.
In the Supreme Court, allies of the former president argued that the theory, as applied to the elector’s clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states.
Anti-abortion happens when a right-wing dominated, Catholic-dominated Supreme Court doesn’t care whether your religion accepts abortion. It’s only their religion that counts.
A dictatorship happens when a white-supremacist SCOTUS doesn’t care that extreme gerrymandering destroys the voting rights of people of color. If their vote can be destroyed, so can yours.
That as many as six right-wing justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling.
There literally is no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions.
It’s not baffling at all. Remember, these are “impartial” right-wing justices who lean over backward to give right-wing theories serious consideration, no matter how wild-eyed they may be.
Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.
Remember that in many of its other rulings, notably about guns, the right-wing court looks to history, especially distant history, for its decision that everyone should be allowed to own, carry, and shoot a gun if the state legislature so deems it.
No history supports the independent state legislature theory.
Their textual argument is that the total disempowerment of state courts necessarily follows from the fact that the elections clause empowers the state legislatures to prescribe the “manner” of holding congressional elections.
But there is neither more nor less significance to the fact that the Constitution assigns this quintessential legislative power to the state legislatures than that the Constitution assigns federal lawmaking to Congress rather than to the executive or the judiciary.
And yet, the Constitution provides for judicial review of the actions of both.
Considering the makeup of this Court, it would not be unbelievable for states dominated by Republicans to ignore national elections and simply send Trump-oriented electors to put him, or some other Republicans, in office.
When taken to its logical conclusion, the independent-state legislature nullifies the Constitution, a step that is not beyond the rabid right-wingers wearing black robes.
But then, if the Court, with a straight face, can claim the words, “A well-regulated Militia being necessary to the security of a free State,” have absolutely no meaning at all, it can claim anything.
Proponents of the independent-state-legislature theory argue that because the elections clause does not assign this legislative role to the state governors and courts, the burden is on those who argue against the theory to come forward with compelling evidence that the Framers intended state courts to review state-legislative election laws.
But that’s to reverse the burden of proof.
Because there is no evident support at all for the theory, the burden instead is on those who argue for the theory to come forward with compelling evidence from the text, structure, or design of the Constitution or from the history at the time of the framing or founding, that confirms that the Constitution conferred on the state legislatures judicially unreviewable authority to redraw congressional districts.
The proponents of the theory have not carried this heavy burden to date, and they cannot possibly carry this burden in Moore v. Harper.
The fact that a Republican SCOTUS is taking this far-out idea seriously enough even to consider it worries me.
The right-wing segment of the Court, having already decided it is perfectly fine for a right-wing Justice to be bribed and have a biased family interest in a decision but not to recuse himself — those guys now itch to rewrite the Constitution.
If this decision goes the wrong way, we will experience a form of fascism that will rival Germany’s. And no, I am not exaggerating.
You may be a conservative. I once was myself until the GOP went nuts. But are you really willing to turn over the results of national elections away from voters and to a bunch of MAGAs?
Rodger Malcolm Mitchell
Monetary Sovereignty
Twitter: @rodgermitchell Search #monetarysovereignty
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