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The demise of Moore v. Harper




The most hyped case facing the US Supreme Court this term has been Moore v. Harper, the controversy that encouraged Trumpists to press their shiny new "independent state legislatures" theory of election law. 

Nothing but mischief (or monkey business -- hence my illustration) was expected from this case. The court never seemed likely to buy into that theory in the unmoored terms in which it is generally phrased but, hey ... one never knows. My own impression is that this court's potential as a fulcrum for a rightward revolution is pretty much spent. The last several Republican Party nominees have been selected with only one common litmus test: their view on ROE. That case is no longer the law, and aside from that, 'the six' are very different from each other. If the dissenting three in that matter can hold together they won't regularly be in dissent, or they'll be able to exert significant influence. 

The wet dreams of the right and the feverish nightmares of the left will go unrealized.

I am happy to report, as it happens, that the case of Moore v. Harper seems to be going away. The Justices are having the parties brief a new or (as George Santos might say) a new-ish mootness theory. 

A prominent mid-20th-century scholar of constitutional law, Alexander Bickel, used to write about the "passive virtues," the methods the Court would use to avoid hearing a controversy that, for whatever reason (and as his phrase implied, Bickel had in mind reasons with which he was in sympathy) it did not want to decide. 

I imagine Bickel, in some faculty lounge in the sky, smiling.  

Comments

  1. Paul D. Van PeltMarch 10, 2023 at 7:50 AM

    I sincerely hope you are correct. Anyone knows when going too far, either left or right, you either end up crashing head on or landing in a ditch---or, worse. The Supremes are a motley mix: either too regressive to cope with an uncertain future or too progressive for the once silent majority. One or two bowls of porridge show potential for being just right (not in the political sense). I don't know a lot about fulcrums, but a first-class lever is most useful when there is a question of balance. That is, or was, what the high court is intended to be about.

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