Viewing a single comment thread. View all comments

TheBrennanCenter OP t1_iynnbf8 wrote

Reply to comment by jeffwinger_esq in We're Tom Wolf,Eliza Sweren-Becker, and Ethan Herenstein. We work on democracy reform at the Brennan Center for Justice. Ask us anything about the Supreme Court’s upcoming case Moore v. Harper and the “independent state legislature” theory. by TheBrennanCenter

ESB: The remarkable thing about the independent state legislature theory is how crystal clear history and tradition cut against the theory. Mountains of historical evidence—from the Framers’ intent to limit the power of state legislatures when they drafted the Elections Clause, to the state constitutional constraints that existed at the time of founding as checks and balances on state legislatures, to the existence of state court judicial review at that time—all of it should lead to the rejection of the ISLT. The originalist case against the ISLT is a slam dunk. And with so many justices purporting to use originalism to interpret the Constitution, the short answer is yes, I believe there is a majority of the court that could and should reject petitioners’ arguments.

And that’s before we get into any of the many other strong arguments against the ISLT.

13

jeffwinger_esq t1_iyny42m wrote

OK, thanks. Follow-up, though: What actually gives any of us the confidence that SCOTUS has any sort of internal integrity as an institution? We've watched the current court tie itself into knots to reach the conclusions that it wants -- why will this be different?

10

Sunburnt-Vampire t1_iyqd4wo wrote

Not the experts but since it seems AMA is over I'll give the impression I get:

Repealing Roe vs Wade and similar "extreme" decisions are simply a reversion to colonial era America. This is this thus easier to justify than ISLT which has never once been a thing in the history of America.

While we might get the impression the stacked SC is free to do whatever it wants, they do need to at least have a "reason" for their actions. And "it's a reversion to how things were when the constitution was written" won't be a valid one this time.

3