Skip to main content

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. 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.

    ReplyDelete

Post a Comment

Popular posts from this blog

A Story About Coleridge

This is a quote from a memoir by Dorothy Wordsworth, reflecting on a trip she took with two famous poets, her brother, William Wordsworth, and their similarly gifted companion, Samuel Taylor Coleridge.   We sat upon a bench, placed for the sake of one of these views, whence we looked down upon the waterfall, and over the open country ... A lady and gentleman, more expeditious tourists than ourselves, came to the spot; they left us at the seat, and we found them again at another station above the Falls. Coleridge, who is always good-natured enough to enter into conversation with anybody whom he meets in his way, began to talk with the gentleman, who observed that it was a majestic waterfall. Coleridge was delighted with the accuracy of the epithet, particularly as he had been settling in his own mind the precise meaning of the words grand, majestic, sublime, etc., and had discussed the subject with William at some length the day before. “Yes, sir,” says Coleridge, “it is a majesti

Searle: The Chinese Room

John Searle has become the object of accusations of improper conduct. These accusations even have some people in the world of academic philosophy saying that instructors in that world should try to avoid teaching Searle's views. That is an odd contention, and has given rise to heated exchanges in certain corners of the blogosphere.  At Leiter Reports, I encountered a comment from someone describing himself as "grad student drop out." GSDO said: " This is a side question (and not at all an attempt to answer the question BL posed): How important is John Searle's work? Are people still working on speech act theory or is that just another dead end in the history of 20th century philosophy? My impression is that his reputation is somewhat inflated from all of his speaking engagements and NYRoB reviews. The Chinese room argument is a classic, but is there much more to his work than that?" I took it upon myself to answer that on LR. But here I'll tak

Five Lessons from the Allegory of the Cave

  Please correct me if there are others. But it seems to be there are five lessons the reader is meant to draw from the story about the cave.   First, Plato  is working to devalue what we would call empiricism. He is saying that keeping track of the shadows on the cave wall, trying to make sense of what you see there, will NOT get you to wisdom. Second, Plato is contending that reality comes in levels. The shadows on the wall are illusions. The solid objects being passed around behind my back are more real than their shadows are. BUT … the world outside the the cave is more real than that — and the sun by which that world is illuminated is the top of the hierarchy. So there isn’t a binary choice of real/unreal. There are levels. Third, he equates realness with knowability.  I  only have opinions about the shadows. Could I turn around, I could have at least the glimmerings of knowledge. Could I get outside the cave, I would really Know. Fourth, the parable assigns a task to philosophers