There is a theory by which some members of the U.S. Supreme Court want to exercise supreme power. A combination of things -- inadequate legal reasoning and bad historical research -- may be why this theory has not appeared in any of the U.S. Supreme Court's majority opinions as yet. It can only be found in citations to some long-ago concurring opinions and to a few modern dissents.
This theory is often called the Independent State Legislatures Theory, but it is broader than its name. It posits that State Legislatures have really been "independent" of any other decider of State law issues since 1789 when the U.S. Constitution was adopted. This theory does not account for the fact that State Legislatures could not exist unless State Constitutions provide for them. They have no "independent" existence separate and apart from the State Constitutions that authorize them.
This theory is generally traced to a concurring opinion written by then-Chief Justice Rehnquist in Bush v. Gore, 521 U.S. 98, 121 S. Ct. 525 (2000). The crux of Chief Justice Rehnquist's concurrence in Bush v. Gore is that the U.S. Supreme Court declared the State Legislature to be the supreme arbiter of State law in Bush v. Gore, 531 U.S. at 112, 121 S. Ct. at 534 (Rehnquist, C.J., concurring).
The Chief Justice was joined in that opinion by two other Justices, Scalia and Thomas. They based their decision on U.S. CONST. art. II, § 1, cl. 2, which reads in full as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
It is not often noted, but this theory of "independent State Legislatures" surfaced by three Justices in Bush v. Gore was explicitly rejected by four other Justices in the same case. In an opinion written by Justice Ginsburg, four Justices expressly rejected the legal reasoning and history offered as the bases of this theory. Bush v. Gore, 521 U.S. at 141-43, 121 S. Ct. at 549-50 (Ginsburg, J., dissenting; joined by Justices Souter, Stevens, and Breyer).
The theory that State Legislatures are supreme arbiters of law in the States regardless of State Constitutions and State Supreme Courts surfaced again in February 2022. That is the only date we have, so far, for what has come to be called the "draft Alito opinion" in Dobbs v. Jackson Women's Health Organization, Download Scotus-initial-draft-opinion Dobbs v. Jackson Women's Health Org. circa 02.10.22 (67 pages with 31 pages of attachments), an emerging development commented on in the two blog articles that preceded this one, the first on May 3, 2022 and the second on May 5, 2022.
Without repeating what was stated in either of those earlier articles, the draft Alito opinion in Dobbs recites: "Our decision returns the issue of abortion to those {State] legislative bodies." Dobbs, Alito draft opinion, at 61 (U.S. No. 19-1392) ("Alito draft opinion," date unknown as of the time of this writing; there is of course no Docket Entry Number for this document). While the draft continues on for a few more words, the Alito draft opinion concludes the majority's holding with the following:
We therefore hold that the Constitution does not confer a right to abortion. Roe [v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973)] and Casey [Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
Dobbs, Alito draft opinion, at 65 (U.S. No. 19-1392). By referring to the people's "elected representatives," the author of the draft clearly has State Legislators in mind.
One month later, in March 2022, Justice Samuel Alito wrote another opinion. This one was written on the shadow docket, and it was a dissent from a denial of a motion to stay the North Carolina Supreme Court's opinion holding that the North Carolina Legislature's redistricting of Congressional elections violated a number of provisions of the North Carolina Constitution.
One of those North Carolina State Constitutional provisions guarantees that "[a]ll elections shall be free." Harper v. Hall, 868 S.E.2d 499, at ¶ 181, p. 553 (N.C. 2022).
The North Carolina Speaker of the House, one State Representative, and a handful of State Senators appealed to the U.S. Supreme Court and requested a stay of the North Carolina Supreme Court's ruling. Justice Alito agreed with them, calling them "the North Carolina Legislature" at one point, and was joined in his dissent by two other Justices, Gorsuch and Thomas. Moore v. Harper, 595 U.S. ___, 142 S. Ct. 1089, 1090 (U.S. March 7, 2022) (Alito, J., dissenting from denial of requested emergency stay). A fourth Justice, Kavanaugh, would have granted certiorari or discretionary review he wrote, but would not grant a stay. (Within two weeks, the appellants filed a petition for certiorari review.)
To sum up these developments, at least three and possibly four or five current Justices of the U.S. Supreme Court are willing to sign on to a theory that makes them supreme in deciding which matters of State law should be decided by State Legislatures and not by State Courts or State Constitutions.
In the end, there is no end to federal overreach under this theory. State Legislatures would have the final (or even the only) word on State law issues whenever a majority of the United States Supreme Court would say so. On its face, this is bad reasoning, ignorant of context and a superficial review of history. It is not a true theory, at last; it is simply a thin cover for what will result in the end in the U.S. Supreme Court's supreme power.
Please read the disclaimer. ©2022 Dennis J. Wall. All rights reserved.
