Below is my column in the Hill on the ruling this week in Moore v. Harper — and the coup that never happened. After months of dire predictions of a coup in the making, the Court overwhelmingly rejected the underlying “independent state legislature,” as some of us predicted. There was little discussion of the prior hysteria or attacks on the integrity of the conservative justices. Political and media pundits will simply move on to the next jump scare item on the docket.
Here is the column:
The fall of American democracy arrived yesterday morning with a thud.
For months, liberal law professors and pundits have filled the media with dire predictions that the Supreme Court was about to carry out a long-planned “coup” and “power grab” — one even wrote that the court could be on the brink of establishing “one-party rule” in the United States.
The dire warnings concerned a hearing of an appeal in Moore v. Harper, in which North Carolina legislators argued that state courts could not override state legislatures on federal election districts. The “independent state legislature” (ISL) theory has never garnered great support among constitutional experts, and many of us stated that we doubted that the Court would embrace the theory.
That did not stop liberal groups from raising the alarms — and more importantly the donations — off the case. Nothing fuels election fundraising like abject fear. Notably, many of the greatest alarmists were also pundits who previously called for packing the Court to install an instant liberal majority … to save democracy, of course.
Harvard Professor Laurence Tribe called for such a radical change after the Republicans won the 2016 election, declaring that “the time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power.”
It does not matter that this term, as in prior terms, a majority of cases have been decided on a unanimous or near-unanimous basis. It does not even matter that the court, with its conservative majority, has delivered repeated victories for the Biden administration, including last week’s 8-1 ruling in favor of President Joe Biden’s immigration policies.
Likewise, it will not matter that the conservative “coup” never came. Chief Justice John Roberts demolished the ISL theory as a barrier to judicial review.
From the prior coverage, one would expect an announcement that the three dissenters in the 6-3 decision — Justices Clarence Thomas, Neil Gorsuch and Samuel Alito — would be granted exile in Belarus after the failed coup. But actually, only Justices Thomas and Gorsuch embraced the theory. Alito only sided with the minority on the grounds that the case should have been thrown out as moot.
It turns out that there were no “right-wing justices making up law to create an outcome of one-party rule,” no “activist, conservative majority … untroubled by violating long-established precedents when they get in the way of achieving its substantive political ends.”
Dennis Aftergut had even warned readers that this was all part of a grand effort of the far right in pumping dark money into the courts: “You don’t need to read the tea leaves to see where the court’s far-right wing wants this to go. Just follow the money,” he wrote.
But the left’s use of dark money does not appear to be as much of a threat to our existence. Critics point to such groups as the Sixteen Thirty Fund, “a nonprofit incubator that provides its tax and legal status to nonprofits, which allows them to avoid filing publicly available tax forms. The Sixteen Thirty Fund is managed by the Washington, D.C.-based consulting firm Arabella Advisors, which oversees a large network that pulled in $715 million in secretive donations for left-wing groups and causes it houses in 2019 alone.”
Demand Justice, headed by former Hillary Clinton aide Brian Fallon, is tied to that dark money group and is leading the charge to pack the court. Fallon once responded to the disclosure of the Clinton campaign funding the infamous Steele Dossier by calling it “money well spent.”
Nothing says democracy like dark money and false conspiracy theories.
In fairness to some of the less bombastic critics, the acceptance of the independent state legislature theory would have produced a radical change in how elections are handled in the United States. However, Moore v. Harper quickly devolved into the latest example of hysteria over a conservative cabal on the court.
The fact is that the independent state legislature theory was based on a good-faith but clearly minority view of the meaning of one line from Article I, Section 4 of the Constitution, referring to the “Manner of holding Elections for Senators and Representatives…prescribed…by the Legislature thereof.”
Many legitimately feared that barring judicial review would invite gerrymandering. Again, however, many of the loudest voices were the least compelling.
The court-sanctioned Marc Elias warned of the conservative plotting around Moore v. Harper but was himself accused of trying to rig elections for the Democrats. Elias, the former general counsel to the Clinton campaign, was a critical figure in pushing the Steele Dossier and false Alfa Bank allegations. He was also accused of lying to the media when asked if the campaign had funded the dossier. Elias was also involved in Democratic gerrymandering efforts and even made his own election machine conspiracy theories.
The grand conspiracy behind Moore v. Harper was explained by Quinta Jurecic in The Atlantic, that “any state-level effort to upend the 2024 presidential election on the basis of … the independent state legislature theory would depend, in part, on the fact that the theory is difficult for laypeople to understand — and therefore open to distortion.”
It was apparently equally difficult for the Supreme Court to understand.
The court will continue to issue some divided opinions along ideological lines. Indeed, we are waiting for cases that are likely to break along those lines this week. These justices hold consistent jurisprudential views that will continue to be manifested in their opinions. However, for every case with six conservatives voting together, there seems to be one with three conservatives voting together in dissent.
The liberal justices are rarely portrayed in the mainstream media as ideological robots or dark-money cutouts. After all, they are viewed as right on the law.
Fear not, however — the next Supreme Court coup conspiracy theory is likely already in the making.