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.
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Author: Jed Shugerman
Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases.
He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.
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