Statement On Supreme Court's Decision To Hear Moore v. Harper

December 09 2022

This week, the Supreme Court heard oral arguments in Moore v. Harper, a case that should alarm anyone concerned with the erosion of democracy in the United States and the implications that erosion holds for public safety. That the Court agreed to hear the case represents a dangerous escalation in efforts to make minority Republican rule possible, and permanent, opening the door to an unprecedented concentration of power in the hands of conservative state legislators.

The very concept of government of, by, and for the people rests on a presumed foundation of shared responsibility, mutual trust, and bedrock safety. When the people cannot trust public institutions to protect them, they either do not have, or are forced out of, full participation in their governing systems and those systems are not truly democratic. This has always been the case for most people in the United States–women of any background; Black, Brown, Indigenous, and non-Christian men; and anyone who is poor or in the LGBTQ+ community, regardless of overlap with other identities–but slow, halting, and bloody progress has been made over the last two and a half centuries toward an expanded, if still badly flawed, democracy. 

The petitioners in Moore rely on a dubious legal theory, the so-called “independent state legislature doctrine,” which, at its most extreme, maintains that governors lack the authority to veto election laws passed by their own state legislatures, and that, furthermore, state supreme courts lack the authority to strike such laws down. The theory holds special appeal for those who seek to grant unconstrained power over federal elections to Republican state legislators, but arguments relying on the independent state legislature doctrine have in the past been rejected by the Court repeatedly.

Today's Supreme Court, however, is an increasingly extremist body untethered to the demands of democracy or those affected by its rulings. Chief Justice Roberts, along with Justices Sotomayor, Kagan, and Jackson have signaled their respect for precedence in this matter, but Justices Gorsuch, Thomas, Alito, and Kavanaugh have all previously supported versions of the doctrine. Only Justice Barrett, who has consistently voted with the Court's radical wing since being appointed by former President Trump, has given no sign of her position.

The decision to hear Moore arrives against the backdrop of a 2019 Court ruling (Rucho v. Common Cause) in which the Court found that there is no remedy at the federal level for partisan gerrymandering because such cases "present a political question beyond the reach of the federal courts." In drafting the majority opinion, however, Roberts wrote that the Constitution's framers had empowered state legislatures, “expressly checked and balanced by the Federal Congress,” to handle such cases. In other words: The Court ruled that the federal court system may not hear partisan gerrymandering cases, but assured the country that such a remedy could be found at the state level–and now the Court is hearing a case in which petitioners seek to remove that remedy. 

Should a radicalized Supreme Court choose to unravel the federal government's Constitutionally-granted power to administer national elections, the franchise itself will lose all meaning wherever a minority party can maintain power despite the will of the people. Extremist conservatives have already demonstrated that it is their intention to constrain Black and Brown people's exercise of their voting rights; when people are prevented from participating fully in the system that governs them, their communal safety is perilously jeopardized.

Public safety is far too often treated as a privilege to be earned rather than an inalienable right that undergirds the entire democratic experiment. From racially disparate policing to the removal of bodily autonomy protections and relentless attacks on Black and Brown voting, vulnerable communities have always suffered from egregious onslaughts on both their public safety and their participation in our incomplete democracy. If the Supreme Court rules in favor of Moore's petitioners, we can anticipate that both will be further eviscerated.