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June 27, 2023
Strict Scrutiny
Is ISL dead? IDK.

In This Episode

The Supreme Court handed down its decision in Moore v. Harper today, saying that state legislatures can’t actually make up whatever rules they want around federal elections, without oversight from anyone. But is this a victory for our democracy, or should we still be freaked out? Kate, Leah, and Melissa break down the opinion and the questions it leaves open.

We’ll be around all week pushing out emergency episodes as the Supreme Court continues to do… whatever it does. Be sure to subscribe in your podcast app of choice so you don’t miss it!

Listen to our previous episodes on the independent state legislature theory/fan fiction/thingamajig: “Debunking the Independent State Legislature Fantasy” with Carolyn Shapiro and Jamelle Bouie, and “Turning Fan Fiction Into Reality.”

Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.




Leah Litman [AD]


Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Leah Litman Hello and welcome back to Strict Scrutiny, your podcast facility about the Supreme Court and the legal culture that surrounds it. Did you see what I did there? Because we’re a facility, we are not bound by any rules, and that makes me your facility host, Leah Litman.


Kate Shaw And I’m Kate Shaw.


Melissa Murray And I’m Melissa Murray.


Leah Litman And just in case that whole facility joke went right over your head, the facility thing is a hat tip to Samuel Alito, whose Wall Street Journal op ed defended his right to receive largesse from billionaires on the ground, that a personal jet and or a personal jet trip is a facility. And we know that because a dictionary definition says facilities include transportation, even though they do not. And even though facilities are not actually exempt from the disclosure and reporting requirements. So just go back and listen to the last episode. It all makes sense.


Melissa Murray Or you could just stay with this one because the gang is back together. We are back together again this week and we are just in time to bring you a quick emergency episode about the opinion that dropped today in Moore versus Harper.


Kate Shaw So as Melissa just said, the big opinion that dropped today and what we’re going to focus on in this emergency episode is Moore versus Harper, which was the case about whether state courts can enforce state constitutions in cases involving state laws regarding federal elections. Maybe to put that differently, the question was whether state legislatures get special permission from the federal Constitution to operate in a law free zone, at least when it comes to federal elections.


Melissa Murray And the court, at a 6 to 3 opinion written by Chief Justice Roberts noted liberal squish affirms what we’ve been saying all along. The independent state legislature theory is really just, in fact, Republican fan fiction. It’s not a legal theory at all. It’s not law, it’s not doctrine. It’s literally something that conservatives cooked up in a meth lab of antidemocratic grievance. So kudos to you, sir. You got this one right? Ish.


Leah Litman Can’t wait to see that Breaking Bad spin off. What would it even be like breaking democracy? Breaking something.


Melissa Murray Basically. Breaking democracy for sure.


Leah Litman But the court didn’t break democracy at least today.


Melissa Murray Yet. yet


Leah Litman Because. I said at least today, I went there, because the big bottom line in Moore is as follows quote, A state legislature may not create congressional districts independently of requirements imposed by the state constitution with respect to the enactment of laws, end quote.


Kate Shaw And again, this was the case in which the question was whether state legislatures, just this one organ of state government, basically operated free from the constraints of law, meaning state constitutions, state courts, and possibly some federal law as well, whenever they wrote rules regarding federal elections.


Leah Litman Basically the question was, are state legislatures, facilities? And the courts said no, because they are not, despite the dictionary definitions that Sam Alito found. But okay, let’s kind of survey the actual legal arguments in the case. So the United States Constitution says in the elections clause, quote, The times, places and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. And then it goes on with language that, you know, we’re not going to focus on here.


Melissa Murray And at issue here specifically was whether that language means that when a state legislature here, the North Carolina state legislature draws legislative districts, do those districts have to comply with the state constitution as it is interpreted by state courts? Or does the North Carolina state legislature get to do literally whatever it wants unconstrained by any constitutional norms? Guess what the North Carolina state legislature said. They said, Bitches, we are free. We’re free to do whatever we want. We’re free to operate in a law free zone. And that was the catalyst for this little controversy. So in this case, some voters challenge the North Carolina map that the state legislature had drawn on the ground, that the map constituted an illegal partizan gerrymander under the North Carolina state constitution. And they actually won in the North Carolina Supreme Court.


Leah Litman At least initially. But then the North Carolina legislature, after that initial victory for voters in the North Carolina Supreme Court, the North Carolina legislature pushing a fringe legal theory that was first pressed by the Bush campaign legal team that included Brett Kavanaugh, John Roberts and Amy Barrett. The North Carolina.


Melissa Murray Hey, we know those guys. We know them.


Leah Litman If those names sound familiar, stay tuned. The North Carolina legislature pushing that theory successfully petitioned the United States Supreme Court for certiorari, which meant the United States Supreme Court had the chance to embrace this fanfic fringe claims in a majority opinion for the first time.


Melissa Murray And, despite the baselessness of the independent state legislature theory fan fiction meth lab product, this grant was actually pretty terrifying, both because multiple members of the current court had worked to develop this theory as young lawyers, and because basically all of the conservative justices had indicated in various election cases on the shadow docket in the run up to the 2020 election, that they were at least ISLT curious.


Kate Shaw Okay, so the grant was really alarming and the argument was more of a mixed bag in that there was more skepticism from the bench than I think we had feared of going into the oral argument. And so our sense that the court was unlikely to embrace a really broad version of the ISL was vindicated in this opinion. So the Court pretty strongly rejects a broad version of the ISL that would say state legislatures are totally unconstrained by law. And that’s actually in this opinion, after first finding that the case was not muted by virtue of the fact that the North Carolina Supreme Court had actually later reversed one of the underlying state court opinions in this case. We’re not going to focus on that. We’re going to stay focused on the merits issue, which is, I think, definitely the most interesting and important part of the opinion. But there was this possibility that because the state court had reversed itself again, at least as to one of the underlying opinions, the Supreme Court wouldn’t decide this case on the merits at all. So it’s pretty striking that it did. And again, it pretty clearly rejects a strong form of ISL.


Leah Litman So let’s recap how the majority rejected the idea that state legislatures are unconstrained by state constitutions as interpreted by state courts when it comes to the rules regarding federal elections. So first is the majority’s opinion relies really heavily on the very idea of constitutionalism, what constitutions are, as well as the concept of judicial review being engrained in the Constitution and incorporated as to the states. You know, to this end, there’s lots of discussion in the majority opinion about the pre founding era and the role of courts in reviewing legislative actions and how this was totally accepted by the time the Constitution was written. So, you know, the Roberts majority says there was basically no way that the framers would have understood or intended that the elections clause provided an exception to the prospect of courts as checks on state legislatures. You know, that’s just not what we would expect the Constitution to say if it actually adopted such a rule. So he has this line in the majority opinion that sounded very much like something that Justice Jackson had said during the oral argument. The line from the majority opinion is, quote, When legislatures make laws, they are bound by the provisions of the very documents that give them life and quote very documents, of course, is a reference to state constitutions. And this kind of sounded to me like some things Justice Jackson had said during the argument that we’re going to play here.


Clip Can I ask you a question? Because you you suggest that there’s this thing called the legislature that the framers were familiar with. And I’m trying to understand why what counts as the legislature isn’t a creature of state constitutional law. But I don’t understand how that’s a different thing. In other words, if the state constitution tells us what the state legislature is and what it can do and who gets on it and what the scope of legislative authority is, then when the state Supreme Court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it?


Melissa Murray I think that’s definitely a he-peat.


Kate Shaw Yeah. You know, they never credit each other in a majority opinion, but it clearly was her. Like that was, you know, basically taken directly from her question.


Melissa Murray We see you, KBJ, We see you.


Leah Litman If all John Roberts wants to do for the rest of his life is just he-peat things that Justice Jackson said during arguments.


Kate Shaw Plagiarize away, my friend.


Leah Litman Fine. Fine.. She’s probably like, take them, sir. You can have them.


Kate Shaw That’s right. That’s right. No, we’re very enthusiastic about this, but it does bear pointing out. In addition to both these basic questions of constitutionalism and judicial review and also the repeating of the Jackson point about state legislatures being creatures of state constitutions, there’s pretty heavy reliance on precedent. And I think notably and conspicuously there is pretty significant reliance on the Arizona state legislature versus Arizona Independent Redistricting Commission case. And that’s really important, I think, in that Roberts cites it and discusses it at length. That was a case in which the court upheld the constitutionality of a state independent redistricting commission against a challenge that was, you know, actually that bore some resemblance to the one here. So there the idea was that the legislature had to. All legislative districts. So it was impermissible for an independent commission to do that work. And the court rejected that argument in a Ginsburg opinion, over a very spirited Roberts dissent. So his apparent now acceptance of the majority opinion in that case seems significant. Again, it’s a pretty low bar to suggest that citing a majority opinion in which you were not a vote is like something that gets you a cookie. But I do think that given kind of the stakes here and given how unhappy Roberts was about that outcome, it’s significant that he seems entirely reconciled to it at this point.


Melissa Murray Good boy. Well, the opinion also, I mean, how to train your killer whale. The opinion also relies on what the majority calls historical practice. And that shouldn’t be surprising given how much this conservative supermajority is really wedded to the idea of history and tradition informing constitutional interpretation. But here, the majority says that this historical practice confirms that state legislatures are bound by state constitutions as enforced by state courts, including in cases regarding federal elections. And again, I think this, too, is about history, but I also think it’s about pretty recent history. So it’s worth again noting that John Roberts wrote from that majority in 2019 RUSCIO versus Common Cause. That was the case that determined that partizan gerrymandering claims were non justiciable in federal court. And John Roberts made it really clear that that didn’t mean that partizan gerrymandering claims are just off the table and could not be reviewed at all. He emphasized repeatedly that state courts remain venues for these kinds of cases. And so again, I think this is an opinion guided by that recent history as well as a sort of broader history of the importance of state courts reviewing state legislatures.


Kate Shaw So there’s also, in the majority opinion, a brief aside that I kind of wanted to get you guys to take on. So it’s about the electors clause. So we’ve been talking about the Constitution’s elections clause. That’s the language that Lee read earlier. But there’s another clause in the Constitution, the electors clause that seemed potentially to be implicated in this case indirectly. So one of the big worries about this case was that if the court did credit the iswell basically saying that in the context of congressional elections, state legislatures get special power that would open the door to a broader reading of the federal Constitution’s electors clause, which prescribes that the state legislature gets to decide how electors are appointed and allocated for purposes of the Electoral College again. So that’s a different constitutional provision. This one is about congressional elections, that one is about presidential electors. But because they both mentioned state legislatures, there was a huge and understandable concern about this opinion’s impact on, say, a state legislatures ability to just appoint electors outright if it was unhappy with the voters in the state and their choices. So here the dissent and the legislative defendants had cited a case called McPherson versus Blacker, which is an 1892 case in which the Supreme Court confirmed the state legislatures power to appoint and allocate electors. And again, these state defendants were basically saying that’s proof of the view that state legislatures can do whatever they want. And the court distinguishes. McPherson But I am curious what you guys made of the language about McPherson. Like, is it a strong rejection of the idea that the legislature in a state can decide how to appoint electors?


Melissa Murray So I flagged this as well because I thought it was really interesting. In large part. I think it’s interesting because a number of people in the media seem to conflate the elections clause with the electors clause. So a lot of the run up in media coverage of Moore versus Harper seemed to focus on the prospect of what this would mean for the Electoral College without really distinguishing that these are two very different and distinct constitutional provisions, but they’re related in ways that I think are important. What surprised me about this decision is that as much as everyone is talking about this as a resounding win for democracy, the majority seems to be pretty weak in its disavowal of the idea that state legislatures can do what they want. These are the electors. So you’re right, Kate, The majority does distinguish the factual circumstances of more versus Harper from the facts of McPherson versus Blacker, but they don’t really go very far in countering the view that the dissent and the legislative defendants have, that state legislatures can basically do whatever they want when they’re appointing and allocating these state electors. So that to me seemed like, you know, put a knot in your mental handkerchief around this piece because this could be a bigger issue down the road. And the court’s not really fencing it off in any way.


Leah Litman So speaking of bigger issues down the road, I guess I wanted to turn now to, you know, having rejected the kind of broadest, most maximalist version of the independent state legislature, meth product slash fanfare, I think there is some uncertainty and really. A range of views that have already emerged about how exactly to read the majority opinion. Beyond that, and we’ll explain this now in a second, but basically, do you read it as a total repudiation of anything ISIL adjacent that should put the thing to rest for all time or as leaving the door open to a different set of cases where the idea might be applied on specific facts or in particular. So we are recording just about an hour after the opinion was released. So we’re definitely still digesting the opinion and will more in subsequent episodes. But here is why There is already some uncertainty and we’ll also kind of share a few takes on what the uncertainty is.


Melissa Murray So to be very clear, I don’t know that the court basically laid this to rest. I mean, like they this could be like any reality television romance. It just pops back up later in a couple of years or so once everyone has forgotten about this. So the court rejects the theory as it was framed by the legislative defendants. And it calls pretty clearly that, quote, The elections clause does not exempt state legislatures from the ordinary constraints imposed by state law. So, yes, state constitutions can constrain state legislatures in cases brought in state court.


Leah Litman But what the court does is it leaves the door open for future challenges to particular state court decisions, interpreting particular state constitutional provisions on the ground that in any particular individual case, the state court might have messed up the state constitutional provision so badly or, you know, maybe some other provision of state law that it messed it up so badly. The state court was no longer interpreting laws, but instead making that. So maybe this sounds a little bit like the difference between, you know, substantive and procedural state constitutional provisions, which the court rejected that distinction in the majority opinion holding that, you know, state constitutional provisions, whether they are substantive or procedural, can constrain state legislatures. But I think the court is still sending some mixed messages. In particular, I wanted to quote these lines from the majority opinion, quote, Although we conclude that the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free reign. We hold only that. State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections end quote.


Melissa Murray And this is basically doubling down on the logic of Bush v Gore. And remember, in Bush v Gore back in 2000, the Florida Supreme Court had reviewed a number of issues arising the course of the conduct of the 2000 election and the United States Supreme Court struck down those state court decisions as violating the federal Constitution. And it’s not surprising to me that this majority would be so enamored of Bush v Gore and the logic of that decision. You know, as Lee I mentioned earlier, Chief Justice John Roberts was on the legal team that structured some of the arguments in favor of the George W Bush cause in Bush v Gore. Brett Kavanaugh was down there as well. So was Amy Coney Barrett. They were basically the ones creating these arguments. And interestingly, these arguments, I think, have new life in this decision.


Leah Litman So, again, just to kind of spell out the Bush versus Gore concurrence theory that Melissa is alluding to, as well as what the majority might be gesturing at here. The idea is that while state courts can generally enforce state constitutions, it is not clear whether in particular cases or when and in what kinds of cases the United States Supreme Court might say that in this particular case, this particular state court was not doing anything approximating interpreting the state constitution or approximating interpreting a state statute and was instead making it, as Justice Kavanaugh wrote in his concurrence in this case, quote, Because the elections clause assigns authority respecting federal elections to state legislatures, the court also correctly concludes that state courts do not have free reign in conducting that review. Therefore, a state courts interpretation of state law in a case implicating the elections clause is subject to federal court review and quote. And the majority opinion, for its part, says we’re not going to adopt any firm test about when state court decisions about the meaning of state law may be subject to review in federal courts. So, yeah.


Melissa Murray The majority also doesn’t address whether a state court erred in this particular case. That is whether it, quote unquote, transgressed the ordinary bounds of judicial review. And Justice Kavanaugh sort of picks up on this in his concurrence, and he notes. Petitioners here, however, have disclaimed any argument that the North Carolina Supreme Court misinterpreted the North Carolina Constitution or other state law. For now. Therefore, this court need not and ultimately does not adopt any specific standard for our review of a state courts interpretation of state law in a case implicating the elections clause. And that, I think is kind of the gist of this. Like, yes, state courts are constrained and federal courts can step in to sort of limit their authority. But there are no real standards here for when that might be the case and when a state court has gone too far.


Kate Shaw So in terms of the mixed signals that one can read in this opinion, Leah and Melissa were just identifying them. I think they’re mostly in part five of the Roberts opinion. That’s where that kind of no free rein language appears. Melissa, your colleague, Rick Pildes very quickly upon release of the opinion was up on the election law blog, basically taking the position that this opinion should not be understood as a complete repudiation of ISL. So he basically says the court endorsed the view in exceptionally vague terms that the Constitution prohibits state courts from transgressing the ordinary bounds of judicial review when they interpret state constitutions or it seems, state statutes. But even though the court’s decision eliminates the most extreme version of ISLT. Pildes worries that we’re going to see constant litigation around this issue in the 2024 elections until a more clear sense of the boundaries on state court decision making, you know, basically emerges. So he, I think, believes that this very much does not put to rest like in for all time the ISL as a viable way to read the election clause of the Constitution. And thus, you know there is the possibility of more uncertainty and more litigation that he reads and these passages of the opinion.


Leah Litman Okay. So we’re going to get into kind of how we all come down on how this opinion should be interpreted, how we should be receiving it in a second. But until we do that, just want to get out kind of all of the, you know, assessments of what the theory might be and what it might allow for. So, you know, that description of what the majority in Moore permits, hearkening back to the Bush versus Gore concurrence, would seem to read this opinion as leaving the door open to something that Kate and I have written about, namely, that federal courts could exercise their authority to make sure that state courts are not transgressing the ordinary bounds of judicial review when they are hearing cases involving federal elections by, say, concluding that the state courts were insufficiently textualist in their interpretations of state constitutions or maybe in their interpretations of state statutes as well. And that was really what happened in Bush versus Gore, the Rehnquist concurrence from that case.


Kate Shaw So I think we have now laid out what is one very plausible potential reading of the case, rejection of strong form of ISL, very much receptive to some other case in which the Supreme Court could be convinced that a state court just got it really, really wrong in interpreting its own constitution. And on that basis, the Supreme Court could reject a state courts interpretation of its own constitution. And again, I think that’s mostly from part five, A of the opinion. I think, again, as we said, we really just got this opinion, but I am having a little bit of a hard time figuring out how to square that language in the opinion with some of the earlier language. So, you know, there are lines like we are asked to decide whether the elections clause carves out an exception to this basic principle, and that’s the principle of judicial review. We hold that it does not the elections clause does not insulate state legislatures from the ordinary exercise of state judicial review. And the ordinary exercise of state judicial review is something that state Supreme courts should be able to perform consistent with their own legal and constitutional traditions and not subject to the second guessing of or the preferred methodological approach of a current majority of this Supreme Court. So if that language gets taken seriously. It seems to me that it leaves only the narrowest of slivers open for the Supreme Court to second guess a state court. If a state court truly goes rogue. And in some ways, like there are already kind of due process constraints that would apply if a state court went truly rogue in the context of a federal elections case, just as there are if a state court went truly rogue in the context of a criminal procedure case. And so maybe the court is not saying anything very different from the existing status quo when it comes to how the Supreme Court is supposed to superintend in a very, very minimalist and deferential way, what state courts do with their own constitution. So that is, I think, a very plausible other way to read the body of the opinion in its entirety, not just the part five eight language.


Leah Litman So we’ve now laid out kind of two different ways of interpreting what the court did in more specifically, whether to what extent the Supreme Court foreclosed federal court review of State Supreme Courts interpret. Haitians are state constitutions or state statutes in cases regarding the conduct of federal elections. Under one reading, the court basically dismissed that as a kind of case that the federal courts should be hearing, saying basically only if the state court used a magic eight ball Right. And concluded that this statute meant everyone needed to do like 150 jumping jacks before they cast their vote. Could the federal courts intervene? On the other is no, actually where there is some dispute about what the state constitution means or what the state statute means, maybe you could get Republican appointed federal judges, basically second guessing state courts, interpretations of state constitutions or state statutes that are protective of voting rights. So that’s kind of the question. So I guess now we can turn to like, how do we think the opinion should be read and how should the outcome in this case and what the court did be described. I have like some thoughts, but then curious to hear yours and more to share if time permits. So I guess I’m kind of of the view of we don’t know, right? I don’t think this opinion definitely means one thing or another. And I say that because, like, there’s language you can point to to support for closing review or permitting it. And I think what the court did in Moore is basically stand down in the face of considerable public pressure and public attention focused on this case and this issue, as well as the Supreme Court more generally. But if that attention had not been on this case, and if it isn’t sustained for, let’s say, all future cases where you might get a narrower version of this theory being propounded, inviting the U.S. Supreme Court to second guess a state court decision that is protective of voting rights, then I don’t know whether this opinion would be read by some future court to actually foreclose federal courts, second guessing state courts, interpretations of state laws that protect voting rights. So that’s my read, which is we don’t know. And what happens will be determined by future events, not just what the state court does and how the US Supreme Court reads the language in this decision.


Melissa Murray I agree with all of that, Leah. I think this is definitely a stay on their necks kind of moment, and that’s what the import of this decision is. I’ll say a couple of things. You know, one, I think it’s really interesting that this court always seems to think it’s settling something like, you know, clarifying when in fact it’s really probably just fomenting more questions. And, you know, we saw this with Dobbs. I think we’ll probably see it here. And and that’s not necessarily entirely the fault of the court. I mean, I do think there is a conservative legal movement that will seize on any opening, however narrow it might be, to continue to push at various issues. And I think they will look for openings here and they will try to push on them. My other observation, it’s really more about the realpolitik of all of this. You know, we didn’t talk about this context particularly, but the initial North Carolina Supreme Court decision was decided when the Supreme Court was under Democratic control. And after the November 2022 midterms, the Supreme Court switched to Republican control. And then they issued the series of decisions that prompted all of these jurisdictional questions about whether the case had been mooted. Obviously, you know, this is a pretty stunning rebuke of the independent state legislature fanfic theory. But I think one of the things we’re going to see going forward that even as this rebuke stands, there’s going to be a lot of appetite among conservatives to continue the process of not only capturing state legislatures, but now capturing state judiciaries in order to be able to have interpretations of the state constitution that would bless and confirm and credit the prospect of Partizan gerrymanders. So that’s what I think is coming out of this in terms of the realpolitik and what we’ll see on the ground in terms of political action.


Kate Shaw I agree with everything you both just said. Maybe I’ll add just a couple more points. One is I think that to Leah’s point about the importance of keeping attention laser focused on the cases as they come up that might potentially give the court another opportunity to say more about what it actually meant here. Andrew Moran’s piece in The New Yorker a few weeks ago about the kind of grassroots mobilization to actually get people in North Carolina and elsewhere. And that’s mobilization by Common Cause, but a lot of other groups and also by a lot of folks writing and commenting about more versus Harper really did help focus public attention in a way that may have had salutary effects on the outcome here in that the court, I think, did walk back from an embrace of, I think, something that seemed quite plausible when it decided to take this case, which it of course had no obligation to take in the first place. And so I think that is an important part of how we got to where we are today and future mobilization will. I think tell us or at least have some real bearing on the meaning that the case comes to have. So I think that’s one kind of really important piece. And then I think the other thing is I just wanted to make a shadow docket point, which is, if I recall correctly, right. The court did not undo this map, write it. There was a stay requested and the court actually left in place the map that the state Supreme Court, as then constituted, had said was required by the state constitution. And so there was a pretty representative like 5050 ish map in place in North Carolina for the midterm elections in 2022. And the court then, you know, here decided that it was correct to not undo the map the way it had in Allen, right. So remember, in Allen versus Milligan, the Voting Rights Act case, the court ordered implemented a discriminatory map on its own legal conclusion when the case was finally before it and decided on the merits. And so, you know, this is just, I think, an illustration of the importance of the court staying its hand in not disrupting democracy on the shadow docket as it did in Allen as it did not do here. So I just think there’s the shadow docket point to make, because it could have been the court put in place a discriminatory map here partizan as opposed to racially discriminatory map and then here said like oops sorry. The intervening developments in the state court obviously complicate the story here. But there is there is definitely a shadow docket back story that I think is worth bearing in mind as well.


Leah Litman So I had like a slightly different shadow docket point I wanted to make about this opinion, but also echoing something that Melissa, you know, you had said where the court is taking issues, where it says that settling them but actually creating less clarity. I feel like part of how we should read this opinion is a reaffirmation of the court’s power, right? Like they are challenging the idea that courts are not in the business of striking down statutes on the ground, that they are unconstitutional. They’re like that prospect is baked so heavily into our constitutional system. It means we are rejecting in broad form this independent state legislature thing, while also potentially reserving for themselves the authority to second guess state courts interpretations of state laws. So this is still a US Supreme Court centric and aggregating opinion. Next thought is something you said, Kate, about the court’s shadow docket and cert. It is getting so much credit for rejecting these absolutely outlandish, insane theories because they have control over their own docket and what cases to accept. So if they are inviting and then granting cases where parties are like, will you abandon the entire concept of law and declare that the day Monday actually ends in the letter unicorn? And they say no. And then it’s like everyone rejoice is right. Great victory for law and democracy. And I feel like that should be tempered by the fact that there were four justices who were iocl curious to even think that this opinion, this issue merited this time and consideration. All pause. But I do want to get to my shadow docket.


Kate Shaw Do it.


Melissa Murray Play in the shadows, Leah. Just do it.


Leah Litman In the shadows. Okay. You mentioned the shadow docket activity in this case, Kate. I had been thinking about the shadow docket activity more directly arising out of the 2020 election because remember, back then there was a motion for a stay of a Pennsylvania Supreme Court decision that had extended various voting protections and procedures in light of the COVID pandemic. And at the time there were eight members on the court because Justice Barrett had not yet been confirmed on that eight member court, four justices would have stayed. The Pennsylvania Supreme Court decision potentially not allowing votes to be counted. Right? Who were those four justices? It was Kavanaugh, Thomas, Alito and Gorsuch. Now, Kavanaugh peeled off and joined the Roberts opinion, rejecting iocl raising, I think, more serious additional questions about the court’s use of the shadow docket and also making me nervous about what might lie ahead for the 2024 election. Like, will they pull the trigger too quickly and stay these decisions before actually seriously considering whether state courts have transgressed the ordinary bounds of judicial review? I don’t know, but intriguingly, you have some interesting statements in the Thomas opinion, which is a dissent, and we’ll talk about it in a second. But Justice Thomas’s opinion raises concerns about the standard that Roberts said federal courts would use to police state courts interpretations of state law, writing, quote, It is difficult to imagine what this inquiry could mean in theory, let alone practice. End quote, and that federal courts are not equipped to judge whether state courts partizan gerrymandering determinations surpass the bounds of ordinary judicial review. And this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by the federal courts, end quote. That’s all right. But it makes me wonder, like, is Thomas, together with Gorsuch, who joined that part of the dissent, going to band together with the three Democratic appointees, to just reject the idea that federal courts can second guess state courts interpretation of state law under the standard like. I don’t think so I worry.


Kate Shaw Surely not. No, no. It’s too amorphous. We need to have more clearly announced power to just decide for ourselves what state law exactly, but an amorphousness is the problem. Yeah. Yeah,


Leah Litman Exactly. It’s making me nervous about, like, what? What the standard could be. Anyways, I said I was going to talk for a long time and that was it.


Kate Shaw Should we talk about the Thomas dissent more?


Melissa Murray Well could we talk first about the Kavanaugh concurrence?


Kate Shaw Yeah, yeah.


Leah Litman Yes.


Melissa Murray Okay. So someone just slid into my DMS to ask me this question that I am also going to pose to you. So here’s the question from idioms. What the fuck are these Kavanaugh concurrences where he rambles for a few paragraphs and I truly do not understand what the fuck he thinks he’s adding. So I think that’s a good place to start.


Leah Litman That’s every guy from your law school class.


Melissa Murray No, no. I think he wants to be John Roberts, his friend, because this is a pretty like like I joined this in Falls, a really good I love it.


Kate Shaw But also, Rehnquist was right in Bush versus Gore and the two that are perfectly compatible, and yet they’re not. And so, yes.


Melissa Murray It’s a three page concurrence. And the gist of it is I’m down with you, Chief Justice Roberts, but I’m also down with your predecessor, Chief Justice Rehnquist, who is no longer alive.


Kate Shaw So I love me some share. I love them all.


Melissa Murray I love chiefs. I love chiefs. He notes that there are a number of different ways.


Leah Litman Aspiring chief under the DeSantis administration so.


Melissa Murray Don’t even joke about that. They’re he’s he’s basically trying to identify a plausible standard for determining when a federal court would step in to sort of rein in this rogue state court. And he notes there is a theory that’s floated by Justice Souter in dissent in Bush versus Gore, a theory that’s floated by the Chief Justice Rehnquist and Bush versus Gore. Some additional theories floated by Solicitor General Prelogar and others, he notes. And he says they all basically coalesce around this one idea. So he says Rehnquist talks about whether the state court has, quote unquote, impermissibly distorted state law beyond what a fair reading required. Souter similarly says where the state court exceeds the limits of reasonable interpretation. And the solicitor general says where the state court has reached a, quote unquote, truly aberrant interpretation of state law. And he’s like, you know, they all kind of get to the same point. But I think this goes back to Lila’s point. All of these things sort of coalesced around the idea that the ultimate arbiter of what is too far is this court and the chief and whichever four or five people he can get to his side. And so it’s another opinion. I think that’s just really doubling down on this idea of judicial imperialism and this court always having the last word, even where state courts are interpreting their own constitution. So again, I don’t know that it was adding that much, but it reminded me of his concurrence in Ramos where he’s just sort of like talking about stare decisis like nobody I like on and on. Thank you. Leah just made muppet hands.


Leah Litman While making a certain face, yeah, yeah, exactly. Melissa got me.


Melissa Murray I got you. I got you. So, I mean, you know, props to him for trying to come in here with some rule, but it just seemed like he was reiterating and sucking up all at the same time.


Kate Shaw I just thought it was, like, not at all plausible. Like, those are not those standards. Do not sound like the same thing to me. And they also in some ways, it underscored the danger of and this is something that I was really concerned about. I mean, I rarely have a bad word to say about Solicitor general prerogative, but her sort of seeming to suggest that there was some like when a state court gets it wrong enough, then yeah, you guys can step in. Just felt like it was an open invitation to like a wildly subjective standard that I, I feel like I feel worse about this opinion 40 minutes into our conversation than going to go ahead. I think.


Leah Litman Sorry, not sorry


Melissa Murray That’s what we need do. That’s us. We are a a band of HARSH-mallows. That’s us. That’s what we do.


Kate Shaw And I think that’s right. It’s but like have, you know sort of a clear eyed and realistic take on this opinion. And yet back to something that we’ve now said a couple of times like it’s meaning is not set in amber, like its meaning will emerge and no it should. Not allow five of them to decide that the state court misunderstood the term facility as properly construed, and does that the opinion can be thrown out? I think that.


Leah Litman Don’t give them any ideas, Kate. I feel like every Brett Kavanaugh concurrence is I’m a nice guy, even though I just ruled against you. It just so happened like that here and in Milligan And in the opinion that has been directed to the conservative legal movement while also preserving the door open for some of the challenges they might want to bring later.


Kate Shaw Can I can I get an addendum on that? I think in the cases in which he rules against you, he’s like, I’m a nice guy, even though I ruled against you in the cases where he does the right thing. He writes separately to say, I’m not actually that nice a guy and I very much will go against you in the next case. I think that’s both this and done.


Leah Litman Yes, no, fair addendum. But I just want to say right to the people who were iocl curious and didn’t like this result and read the Kavanaugh concurrence and they’re like, That’s not doing anything for me. Brett Like, now you know what we have been saying about all of the concurrences up until now, that was all I meant.


Kate Shaw Fair point.


Melissa Murray What do you think of the Thomas dissent?


Kate Shaw Well, it’s interesting that


Melissa Murray It is


Kate Shaw Only Gorsuch joins him for the actual substantive embrace part. So maybe let’s break it down. So as Thomas and Gorsuch and Alito for the view that this case is moot and the court should have dismissed it as improvident, granted, because when the North Carolina Supreme Court overruled its prior decision, the Supreme Court was thereby essentially divested of its jurisdiction over the case, never should have been decided. But then Thomas goes on to say, and I also don’t find the majority’s merits reasoning very persuasive. And interestingly, Alito doesn’t join that part. What do we make of that?


Leah Litman Yeah, so I have some Sam Alito things I will need to say at the end of this discussion. Do you want to do that now or?


Melissa Murray No, let’s do it now. While we’re here.


Leah Litman Okay. Okay. So I think there is a scandal-ito brewing here.


Melissa Murray Scanda-lito! Scanda-lito! *claps*


Leah Litman And it’s not it’s not just it’s not just because our boy has been personally jetting off to Alaska to catch some salmon while drinking less than $1,000 wine being paid for by people who’s cases he ruled on. It’s not just that. No. Okay. It’s that Justice Alito has only had three opinions so far this term, and two of them were unanimous, Percoco and Smith. The other was significant. Sackett And I think he will also get a fourth opinion Groff the Title seven religious accommodations case. Because you don’t.


Melissa Murray You don’t think that’s going to go Kagan?


Leah Litman Wrote Counterman. No, I think Justice Kagan wrote Counterman. So but let’s take a look at these opinion counts. Alito has had three, again, only kind of like one truly major one. The chief now has had four. And I think he’s also going to get student debt and the affirmative action cases. Thomas has had six opinions. Kagan has had six. Justice Sotomayor has had five. And I think she’s got one additional one coming. Gorsuch has had five, and I think he’s got three or three creative. Kavanaugh has said seven. Barrett and Jackson have had six. He’s had three opinions. Like half as many as the next justice will have if Gorsuch gets 303. And I’m right about the chief assignments, like what is going on?


Melissa Murray Sam, you in danger girl?


Leah Litman I’m telling you, scanda-lito watch. Scanda-lito watch.


Kate Shaw Well, he could have lost a majority. That, of course, is always possible. Or he’s just like, No, John, I’m not writing.


Leah Litman Right.


Melissa Murray No, no, no, no, no. Don’t you think this is all of this right now? Is the chief just being like, I’m the captain of the ship, like I’m the captain now?


Kate Shaw That could be punitive. Alito could be like, I really want to write some of these big cases. And John could say like, No, you’re in the corner this term, you’re getting nothing. Yeah, that’s an interesting.


Leah Litman Because you fucking leaked your Dobbs majority and are giving


Kate Shaw And all the other reasons, yes.


Leah Litman On the record interviews to the Wall Street Journal. I mean, I don’t know, but like its curious.


Melissa Murray I love this idea of the chief taking Alito to the woodshed.


Leah Litman I don’t know. Right. I’m not sure that’s my explanation. But something is going on.


Melissa Murray I think that’s a very plausible theory, and I think we should propagate it.


Leah Litman Okay, great. So I also wanted to, like, revisit some things that, as we might say, hits different in light of subsequent revelations. Yes, This is my continued plea to Taylor to perform hits different this Friday. Apparently, the Supreme Court will be releasing opinions that day, perhaps. And so this means I’m really going to need that repeat to happen that anyways. So I flagged this language on the episode I did when you all weren’t here with Steve Maisey from The Economist. But at this year’s American Law Institute conference, the Chief Justice was awarded the Henry Friendly Medal and Justice Kagan. Was there to introduce him and gave him a very nice introduction where she called him.


Clip My great good friend John Roberts.


Leah Litman I mean, the author of Milligan, the author of Moore. Her great good friend. Indeed.


Kate Shaw It does her different.


Melissa Murray She is telegraphing stuff to us.


Kate Shaw Can I ask one more question? Does anybody have any additional pause about. So you think the chief definitely has the affirmative action cases?


Melissa Murray That does not make me feel better.


Leah Litman No, that doesn’t make me feel better either. But I do think he does have them.


Kate Shaw Yeah. No, no. But I’m just saying, like, do any of these does the combination of Alan versus Milligan and sort of revisiting those Kagan remarks and obviously more versus Harper give you any any any possibility that Roberts has got some compromise in which, you know, he does something? Okay. Well, I am about at 10%. That may be up to 20% prediction that.


Melissa Murray Those are the opiates for the people for when they completely got affirmative action like.


Kate Shaw Well, that of course, has been the assumption going in. I just wonder whether that’s 100% lock or you still think it is.


Melissa Murray These guys may be fighting about whether democracy is constitutional, but like they’re all in line on whether black kids should get student loan relief and go to college.


Leah Litman I should say there’s a possibility Alito could have affirmative action.


Kate Shaw Oh, God, jeez.


Leah Litman But like, I just don’t know that the chief would give him that.


Melissa Murray He would not only overrule Grutter, he’d be like, And let’s reconsider Brown.


Kate Shaw No joke. He would 100% do that.


Melissa Murray While we’re here.


Leah Litman While we’re here! While, I have your attention.


Kate Shaw In the neighborhood. I got this pen. I’m going to use it.


Leah Litman You know, the only reason I don’t think that’s going to happen is because the Wall Street Journal’s opinion pages haven’t hinted at it. And so. Yeah, okay.


Melissa Murray His his mole, has connect, hasn’t surfaced it yet.


Leah Litman So we wanted to briefly cover one other case we spent some time previewing that was also decided today and that is counterman versus Colorado. This is the stalking case that the Supreme Court treated only as a case about true threats. So basically the case involved the conviction of someone who continued to message an individual that attempted to block him, sending her, you know, thousands of messages, including some ones that seem to, you know, convey depictions of like physical violence or like harm against her. He was convicted of stalking in California, challenged his conviction, saying, you know, potentially violated the First Amendment. The courts took the case in order to resolve what the category of true threats is. True threats are not protected by the First Amendment, and therefore, individuals can be convicted for making them. In a seven to opinion by Justice Kagan, the court affirms that true threats are not protected by the First Amendment and says that in order to show that a statement or action is a true threat that can be constitutionally prosecuted consistent with the First Amendment, the government has to show something about the defendant’s subjective understanding of the statement or conduct that is merely showing that a reasonable person would understand them to be threatening is not sufficient. But the defendant’s subjective understanding need only be with respect to whether the statement is threatening reckless. That is, if enough to convict or prosecute a defendant. If the defendant was reckless with respect to whether a statement was threatening. This is somewhat of the middle ground of where the parties were. Colorado had argued that it was sufficient to convict someone if they were negligent or if a reasonable person would understand the state and was threatening. The defendant had largely or primarily argued that the state should have to show that the defendant intentionally or knowingly made a threatening statement. The court says instead, they need only be reckless.


Melissa Murray So this is a really fractured opinion, even though it is nominally a 7 to 2 decision. They were kind of all over the place with this. So Justice Sotomayor wrote a separate concurrence in which Justice Gorsuch joined, and she noted that she would not have reached the question of whether recklessness was sufficient in other true threats context, like in cases that did not necessarily involve stalking. So she would have reserved that issue. Justice Thomas wrote a very striking dissent, which we can talk about a minute. Justice Barrett also dissented and Justice Thomas joined her dissent. And interestingly, there’s a footnote in the majority opinion that I think responds to the Barrett dissent. So Barrett in her dissent, accused the court of making a quote unquote, Goldilocks judgment in its favoring of a recklessness standard. And the majority seems to be saying in law, as in life, you know, it’s not such a bad thing to get something just right. So that’s an interesting kind of bit of shot across the bow between these two factions. Kate, you wanted to say something else about the majority opinion and the interaction with the Barrett dissent?


Kate Shaw Oh, there was just a little bit I thought of kind of like snippy ness. And you said this, Melissa, that there even though it’s nominally seven to the Sotomayor concurrence, it’s actually like pretty critical of the majority another on. They come down on the same side. And then Barrett at one point, who is in the dissent, accuses the Kagan majority of, quote, neglecting certain cases and misreading others, which was like Kagan was like a First Amendment scholar when she was a law professor. Like, she definitely, like seems to be enjoying the kind of, you know, doctrinal analysis she’s doing in the majority opinion. So I thought that was sort of like, you know, heated language for like from one law professor to another.


Melissa Murray Bowl of milk. Table two. Yeah.


Kate Shaw Ugh huh. Um


Melissa Murray No, that’s true. It is like an academic conference.


Kate Shaw Yeah, yeah, yeah. That’s right. I think sometimes get a little heated and then Thomas dissents separately. And I think that only Barrett does not join him, but he is basically just eager to remind everyone that he is gunning to overrule New York Times versus Sullivan. The majority cites Sullivan several times, and he basically says he does this weird thing where he’s like, I am in good company criticizing Sullivan, and he lists a bunch of former members of the court who also criticize Sullivan, seeming, I thought, to be engaging in some weird, fuzzy math where he was like, You can count to five if you look across time. And so Sullivan is actually no longer good law. At least I thought that’s what he was suggesting.


Leah Litman I’d like to include a few additional justices on all of the remaining cases that the court has yet to decide, like days later. So, yeah, exactly. Like like let’s ask let’s look at William Brennan and Thurgood Marshall, what they think about affirmative action. That sounds good. And anyway, I’ll talk to you on the others in a sec.


Kate Shaw One interesting inclusion on that list was former Professor Kagan, who had a book chapter about Sullivan, which I think maybe I’ve read once in my life, but I don’t even remember. But I gathered from the citation that she is critical, at least in some respects, of Sullivan. So I think the good news here is that for now, that is just him in this opinion. But it’s definitely not just him on this court coming for Sullivan.


Melissa Murray Off the wall and then quickly becoming on the wall.


Kate Shaw I know, and that is genuinely very scary.


Leah Litman We also got the opinion in a personal jurisdiction case, Maori versus Norfolk Southern, which reaffirmed that the Pennsylvania courts can exercise jurisdiction over a company that is registered to do business in the state and had consented to jurisdiction in the state as a condition for registering. That company also manages over 2000 miles of track, operates 11 rail yards and runs three locomotive repairs in Pennsylvania, and had been sued by a Virginia resident who worked for the railroad in Ohio and Virginia. It’s a super fractured opinion and doesn’t resolve a bunch of issues that may come back to the court soon. So that is all we will say for now.


Melissa Murray I mean, literally, that is all we’re going to say for now. So this emergency episode was kind of a banger. Wow. The court gave us a lot to talk about with Moore versus Harper, but they’ve also let us know that they’re not done yet. You’re right. They may have jaunts and junkets to get off to, but they still have opinions that they need to release and hopes and dreams that they need to dash. So we’ll be back here on Thursday and Friday of this week to watch this term careen toward its ultimate end. And so stay tuned. But thank you for tuning in for this emergency episode of Strict Scrutiny.


Kate Shaw Strict Scrutiny is a crooked media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production support from Michael Martinez, Leo Duran and Ari Schwartz, and digital support from Amelia Montooth.


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