Further, the ISLT is an abomination to originalism, and for genuinely originalist justices, Moore should be an easy case. First of all, American constitutionalism began with state constitutions. Judicial review by state courts to enforce state constitutional limits on the power of the legislature is older than the U.S. Constitution itself. Well before the delegates met in Philadelphia to draft the Constitution, state courts put into practice the notion that legislatures are creatures of state constitutions and bound to observe their limits, not independent of them. In fact, state judicial review provided the model for federal judicial review. As Alexander Hamilton’s classic defense of judicial review made explicit, “the right of the courts to pronounce legislative acts void, because [they are] contrary to the Constitution” has been “of great importance in all the American constitutions.”
Second, not only did the Founding generation cherish the checks and balances provided by state constitutions, the framing of the U.S. Constitution was motivated in large part by fears that state legislative abuses had run amok. The debates over the Elections Clause are replete with the Founding generation’s fears that state legislatures would manipulate the electoral process for partisan gain. Given these worries, the idea that the Founding generation meant to destroy state constitutional checks and balances is preposterous. Not a shred of Founding-era evidence gives any credence to the idea that state legislatures, when regulating federal elections, are free from state constitutional restraints that would otherwise apply to their enactments.
Despite all this, a number of the Supreme Court’s conservative justices have suggested they are ready to buy into ISLT. Back in March, when the full court denied the legislature’s emergency application to stay the North Carolina Supreme Court’s decision in Moore—via what has been called the shadow docket—Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas voted to allow the 2022 elections to go forward with the legislature’s discriminatory maps in place. According to Justice Alito, “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.” The state court’s ruling, Alito argued, wasn’t a genuine act of constitutional interpretation, but had all the “hallmarks of legislation.” Justice Brett Kavanaugh voted to deny the stay based on his view that it was too close in time to upcoming elections, but he called the ISLT argument “serious.” In a prior shadow docket ruling in 2020, Justice Kavanaugh agreed with Justice Gorsuch that “[t]he Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” All of this is to say that at least four justices may be willing to vote to give state legislatures unbounded authority free from state constitutional limitations on their power.
That’s why it is important that, in the run up to oral arguments in Moore, a number of prominent conservative originalists have exposed ISLT as the fabrication it is. In briefs and other writings, originalists across the ideological spectrum are showing that ISLT has no basis in the Constitution’s text and history.
Judge J. Michael Luttig—an influential conservative thinker and jurist, who was appointed to serve as a federal appellate judge by President George H.W. Bush—wrote in The Atlantic in early October of this year that the ISLT is “antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.” He then joined the legal team challenging North Carolina’s discriminatory maps, which filed a powerful originalist brief debunking ISLT. As the brief observed, ISLT is “so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy.”
On top of that, among those joining amicus briefs opposing the legislature’s sweeping and radical claim are many of the leading lights of the conservative legal movement. Professor Steven Calabresi, one of the co-founders of the Federalist Society, together with Professors Vikram and Akhil Amar, filed a brief arguing that ISLT “flouts core tenets of the American Founding” that legislatures were creatures of the Constitution, not independent of it, and “mountains of evidence” that early state constitutions regulated congressional elections. In another brief, former D.C. Circuit Judge Thomas Griffith, who was appointed by President George W. Bush, joined a number of prominent Republican office-holders and appointees, including Peter Keisler, who co-founded the Federalist Society, and stressed just how radical and unprecedented ISLT is. “Never has any federal court struck down a state constitution provision because of the Elections … Clause.” Other prominent conservative originalists voiced similar critiques in out-of-court commentary. In The Atlantic, Professors William Baude and Michael McConnell registered their disagreement with ISLT’s core premises, observing that “[w]hen the federal Constitution gave state legislatures additional authority, it took them as it found them, as created by state constitutions rather than a new free-floating entity. State legislatures are not independent of their constitutions.”
This cross-ideological consensus that ISLT is a dangerous, atextual, and ahistorical theory is hugely important. The question now is whether the conservatives on the Roberts Court—many of whom have already written separate opinions indicating that they might buy into ISLT—are willing to embrace a theory that so many other conservatives have rightly recognized is deeply wrong, deeply radical, and deeply inconsistent with constitutional first principles. If they do, American democracy will pay the price.