Remember “Princess Bride”? Dread Pirate Roberts had a scary reputation and manipulated it to secretly get what he wanted, avoiding open violence but using stealth, misdirection, and trickery. Inconceivable? No, it’s the Roberts Court.
The independent state legislature case Moore v. Harper (to be argued Dec. 7) is the perfect Overton window Roberts Court cynical pseudo-credibility case.
The right-wing argument has a patina of textual plausibility, so the left publicly freaks out.
I predict the Roberts Court rejects it 6-3…
and then it gets undeserved credit for its neutral non-partisanship. And its use of historical arguments plus common sense legitimates its otherwise ideological misuse of originalism.
(I think it may be 7-2. Gorsuch is the unknown. But he signaled his prior ideological bias for this argument in the Wisconsin Covid-access election 2020 case DNC v RNC. But the historical arguments against this nonsense are clear and are well represented in the amicus briefs and the media by conservative law professors and conservative judges.)
The stakes: Under an extreme theory at the core of the Trump fake elector Jan 6 plot, a state legislature could override the voters and certify its own slate for Trump. Some key state legislatures for the 2024 electoral college are still in Republican control (some due to gerrymandering): WI, AZ, NC, GA. Democrats have flipped Pennsylvania and Michigan. So the theory is dangerous, but I don’t think the Roberts Court allows it, at least not on this extreme application.