Amicus briefs poured in, including from conservative legal scholars who, breaking with proponents of the independent state legislatures theory, said the Republican lawmakers’ case was rooted in bad law and a slanted reading of history. Others argued that the justices would find themselves pulled increasingly into petty political squabbles if North Carolina lawmakers had their way. The Biden administration warned that a wrongly decided case would “wreak havoc in the administration of elections across the nation,” confronting voters with one set of rules for state elections and another for Congress and the presidency.
Going into this week’s oral arguments, at least three justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, had expressed sympathy for the Republican Party’s position, but the views of the court’s three others conservatives were less clear. So on Wednesday, Neal Katyal, a former acting solicitor general representing groups who oppose the doctrine, proposed a compromise: that the Supreme Court set a “sky-high” standard before overruling its state counterparts. “It is the ultimate affront to sovereignty of a state,” he said, “to say its own state court got things wrong.”
It can be hazardous to guess what the Supreme Court will do. But as Adam Liptak, the chief legal correspondent for The New York Times, noted in our discussion, a majority of justices might be ready to make some big changes to the way American democracy works.
Here are a few noteworthy points from my conversation with Liptak:
It sounded to me like six justices were skeptical of the argument that state legislatures can’t be bound by state courts when it comes to federal elections. Basically, everybody but Alito, Gorsuch and Thomas. Does that sound right?
That’s one way to put it, and it’s not wrong. There did not seem to be a majority ready to adopt the most extreme version of a theory that would bar state courts from reviewing state laws concerning federal elections under their own constitutions.
But a majority of the court did seem prepared to take what would still be a big step: to let federal courts second-guess state rulings on state law in at least some cases where federal elections are at issue.
A lot of liberal groups were panicked that the Supreme Court took up this case. The gist of their concern was that a conservative majority would throw out decades of established election law and strip state courts of their ability to check what they view as a lot of dangerous, undemocratic laws coming from Republican-controlled state legislatures. Based on what you heard, is there still reason for them to worry? Or was that fear exaggerated?
