In this episode of System Error, we investigate how the U.S. Supreme Court became a broken institution.
In which John Green teaches you about the election of 1860. As you may remember from last week, things were not great at this time in US history.
The tensions between the North and South were rising, ultimately due to the single issue of slavery. The North wanted to abolish slavery, and the South wanted to continue with it. It seemed like a war was inevitable, and it turns out that it was. But first, the nation had to get through this election.
You’ll learn how the bloodshed in Kansas and the truly awful Kansas-Nebraska Act led directly to the decrease in popularity of Stephen Douglas, the splitting of the Democratic party, and the unlikely victory of a relatively inexperienced politician from Illinois, Abraham Lincoln.
Lincoln’s election would lead directly to the secession of several southern states, and thus to the Civil War.
John will teach you about all this, plus Dred Scott, Roger Taney, and John Brown.
By taking over state legislatures, Republicans hope to pass conservative amendments that cannot be electorally challenged
Steve Bannon, the former chief strategist in the Trump White House who is at the forefront of the Republican march toward hard-right populism, is throwing his weight behind a movement to radically rewrite the US constitution.
Bannon has devoted recent episodes of his online show the War Room to a well-funded operation which has stealthily gained ground over the past two years. Backed by billionaire donors and corporate interests, it aims to persuade state legislatures to call a constitutional convention in the hope of baking far-right conservative values into the supreme law of the land.
The goal is, in essence, to turn the country into a permanent conservative nation irrespective of the will of the American people. The convention would promote policies that would limit the size and scope of the federal government, set ceilings on or even abolish taxes, free corporations from regulations, and impose restrictions on government action in areas such as abortion, guns and immigration.
“This is another line of attack strategically,” Bannon told his viewers last month. “You now have a political movement that understands we need to go after the administrative state.”
By “administrative state”, Bannon was referring to the involvement of the federal government and Congress in central aspects of modern American life. That includes combating the climate crisis, setting educational standards and fighting health inequities.
Mark Meckler, a founder of the Tea Party who now leads one of the largest groups advocating for the tactic, the Convention of States Action (Cosa), spelled out some of the prime objectives on Bannon’s show. “We need to say constitutionally, ‘No, the federal government cannot be involved in education, or healthcare, or energy, or the environment’,” he said.
Meckler went on to divulge the anti-democratic nature of the state convention movement when he said a main aim was to prevent progressive policies being advanced through presidential elections. “The problem is, any time the administration swings back to Democrat – or radical progressive, or Marxist which is what they are – we are going to lose the gains. So you do the structural fix.”
The “structural fix” involves Republican state legislatures pushing conservative amendments to America’s foundational document. By cementing the policies into the US constitution, they would become largely immune to electoral challenge.
Were a convention achieved, it would mark the zenith of conservative state power in American politics. Over the past 12 years, since the eruption of the Tea Party, Republicans have extended their grip to more than half of the states in the country, imposing an increasingly far-right agenda on the heartlands.
Now the plan is to take that dominance nationwide.
Article V of the constitution lays out two distinct ways in which America’s core document, ratified in 1788, can be revised. In practice, all 27 amendments that have been added over the past 244 years have come through the first route – a Congress-led process whereby two-thirds of both the US House and Senate have to approve changes followed by ratification by three-quarters of the states.
Meckler, working alongside other powerful interest groups and wealthy rightwing megadonors, is gunning for Article V’s second route – one that has never been tried before. It gives state legislatures the power to call a constitutional convention of their own, should two-thirds of all 50 states agree.
The state-based model for rewriting the US constitution is perhaps the most audacious attempt yet by hard-right Republicans to secure what amounts to conservative minority rule in which a minority of lawmakers representing less-populated rural states dictate terms to the majority of Americans. Russ Feingold, a former Democratic US senator from Wisconsin, told the Guardian that “they want to rewrite the constitution in a fundamental way that is not just conservative, it is minoritarian. It will prevent the will of ‘we the people’ being heard.”
Feingold has co-authored with Peter Prindiville of the Stanford constitutional law center The Constitution in Jeopardy, a new book that sounds the alarm on the states-based convention movement. “Our goal is not to scare people, but to alert them that there is a movement on the far right that is quietly getting itself to a point where it will be almost impossible to stop a convention being called,” he said.
His urgency is underlined by how active the movement has become. A convention resolution framed by Cosa has passed so far this year in four states – Wisconsin, Nebraska, West Virginia and South Carolina.
The group has also been busy around November’s midterm elections, using its muscle and some $600,000 (£528,252) of its reserves to support candidates amenable to the idea. “We have built the largest grassroots activist army in American history,” Meckler told Bannon, probably hyperbolically.
Bannon’s other guest on the War Room, Rick Santorum, a former Republican US senator from Pennsylvania who advises Cosa, told Bannon: “This is something that can happen very quickly. We are a lot further along than people think.”
They are also much better funded than people might think. The Center for Media and Democracy (CMD), which monitors the constitutional convention movement, estimates that it pulled in $25m (£22m) in 2020, the last year for which figures are known.
The funds were split between Cosa and other influential groups on the right. They include the American Legislative Exchange Council (Alec), a network of state politicians and corporate lobbyists which has taken up the cry for a constitutional amendment to force balanced budget restrictions on Washington.
Much of the income is dark money, with the origins hidden. CMD has managed to identify some key donors – among them the Mercer Family Foundation set up by reclusive hedge fund manager Robert Mercer, and a couple of groups run by Leonard Leo, the mastermind behind the rightwing land grab in the federal courts.
More than $1m (£880,265) has also been donated in the form of Bitcoin.
The attraction to these groups and donors of pursuing a states route to rewriting the US constitution is easily explained. Over the past 12 years, since the eruption of the Tea Party in 2010, Republican activists have deployed extreme partisan gerrymandering to pull off an extraordinary takeover of state legislatures.
In 2010, Republicans controlled both chambers of just 14 state legislatures. Today, that number stands at 31.
“Republicans are near the high watermark in terms of their political control in the states, and that’s why the pro-Trump rightwing of the party is increasingly embracing the constitutional convention strategy,” said Arn Pearson, CMD’s executive director.
Should a convention be achieved, the plan would be to give states one vote each. There is no legal or historical basis for such an arrangement but its appeal is self-evident.
One vote per state would give small rural conservative states like Wyoming (population 580,000) equal leverage to large urbanized progressive states like California (39.5 million). Collectively, small states would be in the majority and control would tip to the Republicans.
Last December Santorum spelled out this minoritarian vision at a private ALEC meeting. In an audio recording obtained by CMD, Santorum said: “We have the opportunity, as a result, to have a supermajority, even though we may not even be in an absolute majority when it comes to the people who agree with us.”
Pearson decried such thinking as “a profoundly anti-majoritarian and anti-democratic strategy that gives small rural states most control”.
With the counting system skewed towards the conservative heartlands, the list of amendments that might be pursued is disconcertingly large. Though Meckler and his allies largely avoid talking about culture war issues, it is quite conceivable that a nationwide ban on abortion and a rescinding of gay marriage would be on the table.
More openly, advocates have talked about imposing balanced budget requirements on the US government that would dramatically shrink federal resources. Some have even proposed making income tax unconstitutional.
One of the more popular ideas circulating within rightwing constitutional convention circles, initially floated by the talk show host Mark Levin, is that states should grant themselves the ability to override federal statutes and supreme court rulings. It is hard to see how the federal rule of law could be sustained under such an arrangement with its unmistakable civil war undertones.
Under Article V, 34 states would have to call for a constitutional convention to reach the two-thirds requirement. Cosa has so far succeeded in getting 19 states to sign up, with a further six in active consideration.
ALEC, which sets a narrower remit for a convention focused on its balanced budget amendment, has gone further with 28 states on board.
Either way, there is a shortfall. To address it, constitutional convention leaders have invented increasingly exotic mathematical formulas for attaining the magic number, 34. “We used to call it fuzzy math, now we call it wacky math,” Pearson said.
Advocates filed a lawsuit in Texas in February that tried to get the courts to force a constitutional convention on grounds that they had reached 34 states already – they cobbled together unrelated state convention calls, including some dating back to the 1800s. In July two bills were also introduced to the US House requiring Congress to call a convention immediately.
David Super, a law professor at Georgetown University, said the willingness to adopt outlandish logic should sound further alarm bells. It raised the stakes even higher for the November elections.
“The midterms are crucial,” Super said. “Changes at state-level matter, but will not get them to 34 states. If they can take control of Congress, they could bridge the gap.”
Paradoxically, what happens to Congress in the midterms could have the biggest impact on the future prospects of a states-based constitutional convention. Should the Republicans take back control of the US House and Senate they would be in a position to advance radical Republicans’ demands.
“We’ve already seen a willingness to play fast and loose with the math on all sorts of things in Congress,” Super said. “I would not be surprised if they were to make a serious attempt to adopt one of these bizarre accounting theories should they take control of both chambers in November.”
That could mean a rapid dash for a convention before most Americans would have woken up to the danger.
“If the Republicans prevail in Congress, they could try to call a convention right away,” Feingold said. “People should know that when they go to vote in November – this could fundamentally undermine their rights in a way that is both disturbing and permanent.”
Directed by Amanda Zackem
The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.
According to proponents of the theory, the elections clause creates a special set of rules around federal elections, divesting entities like state courts of their ordinary powers, including the power to enforce state constitutional provisions. In the case of Moore, proponents of the ISLT argued that the North Carolina Supreme Court acted beyond its authority when it found that an extreme partisan gerrymander drawn by the North Carolina legislature violated the North Carolina state constitution.
Because the Supreme Court agreed to hear Moore v. Harper in the absence of any circuit split, and because various members of the Supreme Court indicated their sympathy for the ISLT in cases involving the 2020 election, the cert grant set off alarm bells in both legal and political circles – both because untethering state legislatures from state courts and state constitutions could wreak havoc on federal congressional elections, and because the theory at issue in Moore is a close cousin to the idea pushed in 2020 by Trump allies like John Eastman – that another clause of the Constitution, Article II’s “presidential electors” clause, gives state legislatures plenary authority not just over the “times, places, and manner” of federal elections, which is the language of the elections clause, but also over the method of choosing presidential electors. The “Eastman theory” contends that state legislatures even have the authority to discard the popular vote and instead select presidential electors outright, even after an election has been held.
Whether because the political winds have changed dramatically in the months since the Supreme Court ended its fiery last term, or because an expansive version of the ISLT falls apart so thoroughly upon close inspection (as the cascade of scholarship, statements by current and former judges, and other experts that has been unleashed in recent months in opposition to the ISLT makes clear), Wednesday’s oral argument did not indicate that a majority of the Court is eager to embrace a sweeping ISLT.
That said, a majority may be willing to sign onto some version of the theory, even if a more circumscribed one. Depending on what that looks like, the theory could have important implications for future elections—both congressional and presidential. The “blast radius,” as Neal Katyal repeatedly called the potential effects of the Moore decision during Wednesday’s argument, appears unlikely to be as wide as many initially feared—and as the North Carolina legislators are still seeking—and the decision might not immediately “wreak havoc in the administration of elections across the nation,” in the words of Solicitor General Elizabeth Prelogar. But, in the effort to find a “middle ground” or the like, the Court may nevertheless embrace some version of the ISLT. That is both alarming in its own right, and could invite future challenges that allow the Court to go still further.
Before turning to Wednesday’s arguments, a bit of background is in order. In its modern form, the idea of the ISLT was first floated in a concurring opinion by Chief Justice Rehnquist in the 2000 opinion in Bush v. Gore. Rehnquist, joined by Justices Scalia and Thomas, agreed with the Court’s majority that what the Court termed “standardless manual recounts” violated the equal protection clause. But in his concurring opinion, Rehnquist went on to note that the Florida Supreme Court had also run afoul of Article II in establishing new recount standards; the opinion pointed to Article II’s provision that “‘each State shall appoint, in such Manner as the Legislature thereof may direct,’ electors for President and Vice President” and concluded that a “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.”
Fast-forward to 2020 and another high-stakes presidential election. In a series of cases that reached the Court on its “shadow docket,” all involving challenges to decisions by state courts and state executive-branch officials to facilitate voting in the early days of the COVID-19 pandemic, a number of writings by various justices reflected some version of the view that the Constitution confers special authority on state legislatures when it comes to regulating federal elections. In an October case out of Wisconsin, Justice Gorsuch concurred to raise questions about the Wisconsin Elections Commission’s decision to accommodate voters in light of the pandemic, and Justice Kavanaugh wrote separately to explicitly invoke the ISLT, approvingly citing Chief Justice Rehnquist and asserting federal-court authority to review state courts’ interpretations of state election law: “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” In a case out of North Carolina, Justice Gorsuch again invoked the ISLT, this time joined by Justice Alito; and in a case from Pennsylvania, Justice Alito, joined by Justices Thomas and Gorsuch, wrote “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
These signals from the justices were not lost on some state actors, who picked up and ran with the idea that the federal constitution might give federal courts the ability to second-guess the decisions of state courts and state executive-branch officials when it came to federal elections. In the Moore case, the North Carolina legislature produced a badly gerrymandered set of legislative maps following the 2020 Census. A group of voters and organizations sued, alleging that the maps violated various provisions of the state constitution, including its “free elections” clause. The North Carolina Supreme Court agreed with the plaintiffs in a lengthy opinion, which included a brief discussion of the late-added argument made by the legislature that the U.S. Constitution’s elections clause barred any state judicial review of the federal map. (The North Carolina court called the argument “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts.”) After finding the maps unconstitutional, the state Supreme Court gave the legislature a chance to produce new maps; a three-judge court approved the new state legislative maps, but found the new congressional maps still unlawful. So the three-judge court, pursuant to state statute, convened a group of special masters to produce a map for the 2022 congressional election. A fairly ordinary process—until the state legislators successfully petitioned the Supreme Court for review.
Going into Wednesday’s arguments, it seemed clear that the most important justices to watch were Chief Justice Roberts and Justice Barrett, who did not join their conservative fellow travelers in the 2020 presidential-election cases discussed above (which predated Justice Barrett on the Court), and Justice Kavanaugh, whose record on the ISLT is mixed. Throughout the argument, the tenor of Barrett’s questions suggested that she was unlikely to vote for an expansive view of the ISLT that totally disabled state courts from participating in the regulation of federal elections. Roberts, and at times Kavanaugh, seemed to be in a similar place.
That may in part be attributable to several important strategic choices made by the petitioners—choices that in this case laid bare the incoherence of the ISLT, but that also leave open the possibility of a future challenge faring differently. The most important choice may have been not to mount a challenge to the Court’s precedents in this area, including Smiley v. Holm, a 1932 case in which the Court held that a requirement of a gubernatorial veto did not impermissibly intrude upon legislative authority under the elections clause. Very early on in the argument by David Thompson, who represented the North Carolina legislators and advocated for the ISLT, Chief Justice Roberts pressed him on the question of the gubernatorial veto: “that’s a pretty significant exception. You have otherwise a very categorical case, and it’s sort of of, well, with this one exception. But vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants.”
Thompson offered two arguments in response: first, he maintained that a requirement of a gubernatorial veto was a “procedural limitation” that was consistent with the elections clause, but that any effort by non-legislative state actors to substantively regulate federal elections was impermissible. Roberts seemed dubious about the workability of this distinction, as, importantly, did Barrett, who noted that “you do have a problem with explaining why these procedural limitations are okay but substantive limitations are not.” (She also harkened back to her days as a law professor, noting about the procedure /substance distinction, that “as a former civil procedure teacher, I can tell you is a hard line to draw and a hard line to teach students.”) The petitioners also seemed to argue, citing sources like Samuel Johnson and (Alito-favorite) Sir Matthew Hale, that the legislative process was once understood (at least in the majority of states) as involving “three branches of the legislature,” with the governor as the third, so that a veto was permissible as a part of the ordinary legislative process. Either way, not only Roberts and Barrett, but also Kavanaugh and even at one point Alito, seemed to struggle with this.
In addition to the argument that state courts have no role in interpreting and enforcing state constitutions in the context of federal elections, the petitioners offered a backup argument: that at a minimum states cannot enforce general or vague state constitutional provisions, and that provisions like the one at issue here – guaranteeing free and fair elections – are simply not clear enough to produce judicially manageable and administrable standards. There was a great deal of discussion of this idea across the three hours of argument, at times shading into the distinct question of whether there is a role for federal judicial review of some subset of state-court rulings that involve federal elections.
With the exception of Justice Alito, it wasn’t clear how much support there was for the idea that some state constitutional provisions are too vague or general or insusceptible to judicial standards to be enforced by courts at all. But there did seem to be support for the idea that there are occasions on which federal-court intervention in this area might be appropriate. As to the latter formulation, all of the advocates arguing against the ISLT seemed on board with the Court announcing some such set of standards for review of state court interpretation and enforcement of state constitutional provisions (perhaps leaving for another day the question of the interpretation of statutes). Former Solicitor General Don Verrilli, arguing for the state respondents, framed the proper test as “whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
Neal Katyal for the non-state respondents offered a similar test, describing a “sky high” standard for federal court intervention.
Solicitor General Elizabeth Prelogar emphasized that in the mine run of cases, “if a state court is conducting judicial review and is interpreting its state constitution, that — that presents no fundamental conflict with the Elections Clause itself.” But she allowed that a very narrow and limited constitutional claim might be available where a “state court isn’t actually engaged in the process of judicial review.”
The idea here seems to be that if a state court is engaging in pure policymaking, or is doing something unrecognizable as judging, that court might be understood to have usurped the legislative role in regulating elections in a way that runs afoul of the elections clause. But of course, as Justice Kagan underscored in a revealing colloquy with Verrilli, whether a state court decision reflects “pure policymaking” is largely in the eye of the beholder; as she noted, “every single one of us on this bench has written opinions at times, you know, saying that other judges, whether it’s other judges on this Court or — or lower court judges, you know, have engaged in policymaking rather than in law.”
Whatever the standard, if we are debating the scope of federal judicial review of state court enforcement of state constitutional provisions as a matter of the elections clause, in some ways the ISLT has already won. A muted public response to that possibility may be reflective of a shifted Overton window.
Any decision that allowed federal courts to insert themselves into state courts’ superintending of state constitutional provisions when it comes to voting would be enormously problematic, even if not cataclysmic in this formulation and application. I detail many of the reasons in a recent law review article with Leah Litman—but for present purposes, one problem that became clear in Wednesday’s discussion was that any Supreme Court test that allowed inquiry into whether state court decisions are sufficiently “judicial” to satisfy the Supreme Court would inevitably entail the imposition of federal ideas about judging onto state courts, in a way that is fundamentally incompatible with state sovereignty and constitutional principles. Down the line, such a decision could also open the door to challenges that are more aggressive—including, potentially, challenges that take on precedents like Smiley and Hildebrant head-on, as John Eastman’s amicus brief did—with Justices Alito, Gorsuch, and Thomas waiting for the magic two more votes to entrench the more radical version.
There’s no guarantee, of course, that this will be the eventual holding in Moore. There was sufficient skepticism at the oral argument that it is possible to envision this case ending like the 2020 “rogue elector” case Chiafalo v. Washington, in which a unanimous Court rebuffed a request to adopt a novel theory whose consequences for American elections would be enormously destabilizing. But if the Court does adopt some “compromise” position, the magnitude of that decision shouldn’t get lost in relief about what the Court didn’t do. A partial victory for the ISLT is still far more than the theory warrants.
From Hungary to Texas, the Breaking the Vote teams travel around the world to trace the steady rise of authoritarianism and its impact in the U.S.
The clock is ticking for the anti-democracy “independent state legislature” takeover.
Democratic politicians, along with independents and Republicans who likewise revere democracy, are justifiably savoring 2022 midterm voters’ historic affirmation of the core principle of government by representatives elected by popular majorities. But these pro-democracy leaders must now pivot to confront an as yet unacknowledged elephant (pun intended) in the room—the activist reactionary 6-3 supermajority controlling the Supreme Court.
In a case scheduled for argument on December 7, Moore v. Harper, North Carolina Republican state lawmakers are asking the court to give state legislatures an exclusive monopoly to write every jot and tittle of laws governing elections for federal congresspersons, senators, and presidential electors. The doctrine on which they rely, known as independent state legislature theory, or ISLT, would, in the extreme form they advance, shield state lawmakers from review or check by any other state institution—that is, from governors’ veto power, or from state courts’ authority to enforce state constitutional election requirements. Granting this claim would nullify democratic guarantees embedded in virtually all state constitutions since the founding era, and never questioned until the past few years. Still, at least four of the justices have on recent occasions indicated willingness to consider doing just that.
The court has already reached out aggressively to scale back long-standing democratic election safeguards, most recently in a decision that could well have cost Democrats control of the House of Representatives. As I have written, on February 7, the court, by a 5-4 vote, bypassed regular order to suspend implementation of a unanimous ruling by a panel of three lower court judges—two Trump appointees and one Obama appointee. The panel had held that the 1965 Voting Rights Act required invalidation of the Alabama legislature’s 2022 congressional election district map; that map yielded one Black representative and six white representatives, although Black people constitute 27 percent of the state’s voters. The extraordinary intervention, in an unsigned order with literally no explanation—by Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—infuriated, not only the three liberal justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—but conservative Chief Justice John Roberts.
Roberts scolded his customary allies: “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction.” In effect, the court suspended a core requirement of the Voting Rights Act outlawing racially discriminatory gerrymandering. Following that lead, federal appellate judges let stand patently racist gerrymanders in several red states—decisions that resulted in Democrats losing between seven to 10 seats, as calculated by Slate’s Mark Stern. Had Democrats won those seats, that likely would have been enough to keep the House blue this year. Whether the final count shows that the court’s norm-shattering February 7 intervention actually flipped the House or merely bloated Republicans’ victory margin, there is no mistaking that five Republican-appointed justices used their raw power to ensure that patently illegal, racially discriminatory redistricting maps stayed in place long enough to govern the 2022 elections. Presumably, they will be prepared to use that power for similarly decisive partisan ends again and again.
Still, Democratic political leaders have stood largely silent in the face of these facts. At a House Judiciary Subcommittee hearing on July 28, witnesses pinpointed the dangers of the North Carolina Republicans’ claim and elaborated its unlawfulness. Unsurprisingly, that hearing received no attention from mainstream media. Likewise, liberal politicians failed to step up and generate the sort of sustained high decibel ruckus that has turned other potentially transformational Supreme Court cases into politically resonant blockbusters. Outside of the legal cognoscenti, this matter has gained little traction: The media and the public remain unaware of this threat, as well as its imminence and gravity.
The muteness of Democratic leaders reflects their long-standing allergy to acknowledging the Supreme Court as a political adversary, and the critical need to make a major political issue of the court’s increasingly errant interpretations of the Constitution and important federal laws. This time, however, they no longer have the excuse that their constituents don’t care and won’t listen.
For decades, most Democratic voters gave low or no priority to the courts or legal disputes, and were unresponsive to Democratic leaders’ sporadic attempts to spotlight the legal right’s accelerating threat to core interests of ordinary Americans. But on November 8, Democratic voters—along with most independent voters, and significant numbers of Republicans or former Republicans—made resoundingly clear that they are now paying very close attention, and they really don’t like what they see. According to the Associated Press VoteCast survey of midterm voters, 38 percent of all voters said that the Supreme Court’s Dobbs decision had a major impact on their decision about whether to vote, and 47 percent said the decision had a major impact on who they voted for, including 64 percent of those who chose Democratic House candidates.
Even more remarkable, voters showed that they cared a lot about another value: preserving democracy—a concern triggered by Trumpist allies’ campaigns to sabotage democratic election laws and administration. Moreover, voters took the trouble to figure out what they needed to do to squelch that threat. In all six of the 2020 battleground states in which election deniers were running to win ordinarily obscure positions responsible for election administration, their Democratic opponents prevailed in all but, possibly, one contest, and frequently by larger margins than Democratic candidates for higher-profile jobs. As New York Times pollster Nate Cohn noted, concern about “democracy [was] concentrated in battleground states in which Stop the Steal candidates would have had the power to subvert national elections.”
With regard to the new threat to democracy pending on the Supreme Court’s docket, these midterm election results yield two huge takeaways. First, Americans of many political stripes have sat up and taken notice of the fact that this Supreme Court majority is capable of drastic changes in the law that would take away fundamental legal protections long taken for granted. Last week, the breadth and intensity of that focus was demonstrated by the November 17 62-37 Senate vote, with 12 Republican yeas, to advance a federal statutory right to same-sex and interracial marriage. Apparently, many people are both aware of, and incensed by, the explicit threats to constitutional protection for rights beyond abortion, spelled out in Justice Alito’s and Justice Thomas’s Dobbs opinions.
The second big takeaway from the midterm results is that popular majorities are alert to threats to undermine democratic (small “d”) elections, and they prioritize rejecting such threats—the very danger posed by ISLT at issue in the pending Supreme Court case. Hence, if alerted, the forces who turned out to vote down political anti-democratic saboteurs would be primed to register outrage at this threat from a different source, namely, the court—outrage on a scale sufficient to signal massive backlash if the justices were to accept Republican legislators’ invitation to strip long-standing democratic safeguards.
But it’s up to Democratic leaders to sound the alarm. As Cohn put it, “No matter how you cut it, you need to elevate these concerns in front of voters. What’s relevant to me is that they responded to those concerns.”
Any such backlash prospect would likely spark attention from at least two of the justices on the right—Chief Justice Roberts and Justice Kavanaugh. Plausibly, that possibility could also concern Justice Barrett, who has sometimes shown discomfort with hard-edged reactionary positions struck by certain right-wing colleagues. Apprehension on the court about potential popular and political repercussions would seem well-based, given the blowback to Dobbs evident in voters’ affirmation of abortion rights and the Senate’s embrace of marriage equality.
Those same manifestations should lead liberal and other pro-democracy leaders to seize this moment of heightened public awareness and mobilize a sustained campaign to target this case—in the process, building capacity to quash other right-wing attempts to use the courts to sabotage democracy.
Potent message points to guide such a campaign are readily at hand. First, the voters just reasserted the constitutional imperative that “We the People” select our representatives, not the other way around. Six unelected, life-tenured justices, who have proven their views on fundamental issues to be well south of mainstream America, have no business attempting to snatch that hallmark of democracy away.
Second, the legal hollowness of the North Carolina legislators’ power grab claim is evidenced by the remarkably bipartisan expert opposition to that claim. In the case, at least eight amicus curiaebriefs were filed by or on behalf of prominent conservative and Republican constitutional lawyers, including senior legal officials in the Reagan and both Bush administrations. These include:
- Former Fourth Circuit Court of Appeals Judge J. Michael Luttig, once considered one of President George W. Bush’s most conservative appointees, and author of a recent article entitled, “There is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory”;
- Steven Calabresi, a co-founder of the Federalist Society and prolific constitutional scholar;
- Benjamin Ginsberg, probably the most prominent election litigator for Republican clients before his 2020 retirement, having served as counsel to all three Republican national party committees, and representing four of the past six Republican presidential nominees, including, through his former law firm, President Trump’s 2020 campaign, as well as counsel to the American Governors Association;
- Thomas Griffith, a former George W. Bush appointee to the D.C. Circuit, currently on the Harvard Law faculty;
- Charles Fried, President Reagan’s solicitor general and longtime Harvard Law professor;
- John Danforth, former Republican U.S. senator and state attorney general from Missouri; chief Senate sponsor of Justice Thomas’s nomination to the Supreme Court;
- Carter Phillips, deputy solicitor general under President Reagan, who has since argued more cases before the Supreme Court in private practice than anyone in history.
Further underscoring the breadth and depth of opposition to the ISL claimants, the Conference of Chief Justices, which comprises the top judicial officials in all 50 states, filed an amicus curiae brief arguing that the Constitution does not “oust state courts from their traditional role in reviewing laws under state constitutions.” Explaining to The New York Times why the conference made the “highly unusual” decision to file a brief in a “politically charged” case, the chief justice of Texas’s (yes, Texas!) Supreme Court said, “It’s the biggest federalism [i.e., federal displacement of state authority] issue in a long time. Maybe ever.”
A third message point, which should resonate with most members of the court’s right-wing, is that “originalism,” the interpretative methodology long professed by conservatives, manifestly supports the state chief justices’ constitutional understanding. Originalist scholarship confirms that, when the 1789 Framers wrote that the state “legislature” should “prescribe” the “Time, Place, and Manner of elections” of federal elected officials, they did not mean to repeal state courts’ traditional authority to ensure that all state laws, including election laws, pass muster under their state’s constitution.
As held by the leading Supreme Court case decided over a century ago in 1916, the Framers understood that sentence to refer to the state’s “legislative power,” which would include “the state constitution and laws.” One scholar recently documented that, in the decade after ratification of the original Constitution, all but one state adopted “state constitutional provisions regulating federal elections,” which “would make no sense if the Founding era understood the federal Constitution to bar [such constraints on the legislature’s power].”
And since the founding era, precedent and practice have consistently followed that common sense understanding. As recently as 2019, Chief Justice Roberts elaborated, in approving detail, how state courts have applied their state constitutions to check partisan gerrymandering in congressional elections. Three years later, embracing the North Carolina legislators’ ISLT claim would be hard, indeed, to square with that pronouncement, written in an opinion for the court.
A fourth message point is similarly accessible to media and public audiences, and likely to resonate with some of the right-wing justices: Removing state level checks on legislatures’ rule-setting for electing federal officials would have vast, calamitous, and readily demonstrable real-world consequences. As University of California, Los Angeles, election law expert Richard Hasen has pointed out, Supreme Court embrace of the North Carolina Republican legislators’ theory—which echoes suggestions in recent opinions by Justices Alito, Gorsuch, and Thomas—would “open the floodgates to new litigation in federal courts” because “each routine state judicial or administrative act of gap-filling or interpretation would become the basis for a federal constitutional lawsuit based upon some alleged discrepancy between the statutory text and the interpretation and implementation of that text.” The litigation explosion would especially overwhelm the Supreme Court, Hasen noted, “as it will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket.”
As the Brennan Center for Justice has elaborated, such a decision would empower state legislators to ignore, for example, the provisions in all state constitutions but one that guarantee the right to vote in free, fair, equal, or open elections; or the 16-state constitutional guarantees of access to absentee or mail-in voting; or the 14-state constitutional provisions establishing standards or procedures for drawing congressional districts. In that vein, state legislators could ignore state constitutional election safeguards adopted by referendum, such as the ranked choice reform that Alaska adopted in 2020, or Michigan’s 2018 adoption of no-excuse absentee voting, also by referendum.
Last but not least, embracing the North Carolina Republicans’ claim would be a transparently partisan exercise in twisting the law to flip elections. As such, it will be of a piece with recent, increasingly audacious decisions erasing established democracy protections, and tilting the electoral playing field to the right. There is no other way realistically to explain actions like the February 7 shadow docket edict noted above, which shielded several red state’s racially driven gerrymanders from unambiguous Voting Rights Act prohibitions. As Justice Elena Kagan wrote, dissenting from a 2021 decision gutting another unambiguous Voting Rights Act provision, “At odds with Section Two [of the VRA] itself … to sap the Act’s strength … mostly inhabit[ing] a law-free zone.” Justice Kagan’s zingers could readily fit, and sharpen, all sorts of politicians’ communications to the media, constituents, or colleagues.
The hour is growing late. Public information campaigns to shape the environment in which future decisions will be made should start early—as soon as prospects for legal challenges from the right surface, or as soon as liberal advocates frame their pitch—not wait until a matter has reached the Supreme Court, or worse, until the court has delivered an adverse result.
But now liberal and other pro-democracy leaders have no choice. They must seize the opportunity revealed by the newly heightened public awareness of Supreme Court radicals’ capacity to pulverize previously unquestioned legal guarantees. They must drive home the fact that Dobbs was not a one-off aberration, but just one of many items in a broad and transformational, reactionary agenda.
And they must reiterate, over and over, that the Supreme Court’s right wing, no less than election-denying politicians, is a threat to subvert the Constitution’s guarantee of a truly democratic republic. This means building robust, sophisticated campaigns that can center those—perfectly valid—memes in media and public consciousness, keep them there, and generate a viable launchpad for potential remedial action. For Democrats, to continue finessing this challenge could amount to political suicide.
Roman Abramovich said to be among those looking for a luxury base in the UAE, which is unafraid to snub the west
On the tarmac of Dubai airport, half way along its main runway, a small terminal has been doing brisk business this month. Daily flights have disgorged dozens of Russians – many among the wealthiest figures in Vladimir Putin’s inner circle.
A short VIP welcome and limousine ride later, and the oligarchs are into a world that cares little about Moscow’s invasion of Ukraine or the attempts to punish Putin, and has instead willingly embraced his enablers.
Perhaps more than anywhere else in the world, the oligarchs, and other cashed-up Russians are welcome in Dubai, along with their riches, which are flooding to the United Arab Emirates in unprecedented amounts – often via discreet means.
The UAE has not followed western governments in using sanctions as retaliation for the invasion of Ukraine. Bankers, real estate agents, car dealerships and marinas are reporting extraordinary demand for homes, sports cars and mooring space as the influx settles in to an oil-rich monarchy that has charted its own course on Putin’s Russia and is not afraid to expose glaring tensions with the US in doing so.
Transactions, from elite property sales to leases, are largely being conducted using cryptocurrencies, but some have been straight transfers from Russian financial entities linked to sanctioned tycoons, a regional intelligence source told the Observer. Such moves undermine sanctions imposed by the US and EU on the Russian leaders’ allies and are a potent lure for the next rung of Russian businessmen who fear the same fate.
Real estate agents in Dubai are reporting one of the biggest bull markets ever as Russian investors snap up apartments sight unseen, either buying them outright, or paying a year’s rent in advance. “It’s been unbelievable,” said Alan Pinto, a leasing consultant at Espace Real Estate in Dubai Marina.
“A radical amount of Russian investors are purchasing units. Even tenants; we’ve had a huge amount of calls. They transfer their funds via crypto. They have an intermediary who will do that for them and then the cash is passed to the landlords.”
Rumours are widespread among Dubai realtors that the billionaire and ex-owner of Chelsea Football Club, Roman Abramovich, is in the market for a luxury base on the city’s coveted foreshore. One of his jets has been a regular visitor to the airbase, and a yacht linked to him has been moored in nearby Gulf waters.
Abramovich’s property holdings are being scrutinised around the globe, including in the French territory of St Barts in the Caribbean, where he is a major holder of luxury homes in Gouverneur Bay, near compounds owned by other oligarchs.
He is believed to have financed substantial upgrades to public facilities, including roads and car parking, winning the favour of local authorities.
“It will be the same in Dubai,” said a real estate agent who has sold two luxury properties, valued up to $20m to Russian investors in the past three weeks. “They know how to deal with the local authorities and to make themselves good neighbours.
“A lot of the new investors are very hush-hush,” said Pinto. “They will never purchase directly, they get companies to do it for them.”
While oligarchs’ jets continue to shuttle between Moscow and Dubai, so do commercial flights. There is no sign of the money flow between the two cities slowing down and there has been little local reaction to a move earlier in March by the global financial crimes watchdog, the Financial Action Task Force, to put the UAE on its “grey” list, meaning the provenance of some money in the UAE could be considered opaque.
Among bankers, power brokers and global tycoons, the UAE has long been known as a receptive environment for investment that asks few questions. A residency permit and a bank account can be obtained in 30 days following the registration of a company. Permanent residency can be purchased for the price of a luxury villa – about $1.5m.
Employees of leading banks may soon be signing up.
Goldman Sachs was among the first US banks to announce the closure of its Russian business. It had about 80 employees in Moscow prior to the conflict, roughly half of whom are now moving to Dubai. A small number of JP Morgan’s 160-strong Moscow workforce are also relocating, although many employees are still in Russia, unwinding operations there. It is understood the easy availability of Dubai visas has played a role in the choice to relocate.
Private bank Rothschild, whose wealth management unit reportedly decided to stop accepting new Russian clients, is also said to be moving some of its Russia-based staff to the Emirates. The bank did not respond to a request for comment.
The UAE government has claimed to have taken significant measures to regulate the inflow of money. Its ready acceptance of Russian wealth at a time of global scrutiny on Putin’s financial tsars may put that claim to the test. But even more open to challenge is the relationship between the UAE and Washington, as Emirati leaders edge closer towards China, which as well as being a geopolitical rival is emerging as the potential hub of an alternative financial system.
The Chinese cross-border payment system, Cips, is being mooted as a replacement for Swift – a development that could change the nature of global finance and dilute the impact of sanctions on Russia. While such a move does not seem likely – at least in the short term, Emirati leaders have not been shy in showing their displeasure with US president Joe Biden, who they believe has shied away from a longstanding strategic partnership, at a time when Putin has been prepared to embrace them.
The war in Yemen has widened the rift. In January, Houthi forces claimed responsibility for an apparent drone attack in Abu Dhabi that killed three people and left flames billowing from an oil storage site.
“They have been particularly upset over Yemen, and the fact that they did not get a phone call from Biden after Abu Dhabi was hit by drones and rockets fitted by the Houthis,” said an expatriate in Dubai with knowledge of the government position.
Julien Barnes Dacey, the head of the Middle East and North Africa programme at the European Council for Foreign Relations, said: “At face value UAE seems they think they can navigate around US sanctions but it may just be too early for them to have internalised what this western anti-Russian sanctions drive really means.
“It’s hard to know how much it fits into the recent sense of Emirati hedging, and whether they are actively looking to send a message to Washington that they’re frustrated with the US position at large and are happy to go their own way moving forward.”
In Dubai, bling is back. Boulevards that were silent during the peak of the pandemic are bustling with the roar of sports cars, some driven by locals, others by young Russians.
Towering over them is the world’s tallest building, the Burj Khalifa, which sparkles like a giant Disney castle with all manner of light shows. A Russian family are taking photographs of the building at sunset. “It will be red, blue and white soon,” one of the visitors says to his Emirati host, a reference to Russia’s tricolour flag. “I’ll arrange it,” the host replies with laughter.