11 December 2022

Another bullet dodged?

Possibly the best news this week, despite its indefiniteness, is the widely held impression of court watchers that the Supreme Court (with the exception of certifiable lunatics Thomas, Alito and possibly Gorsuch) appeared pretty obviously unimpressed with the preposterous Constittutional arguments for the so-called "Independent Legislature Doctrine." Dahlia Lithwick, and most other observers, seemed pretty convinced the Court will not adopt this doctrine, at least not in any broad form. One more extreme Right Wing bullet aimed at the heart of small-d democracy dodged, if so. 

If anyone is unfamiliar with the argument, it came into play in Trump's desperate efforts to escape the effects of losing the 2020 election. The basic idea is that the Constitution says that the "manner" of conducting elections for federal offices is to be determined by the "state legislatures." Right Wing pseudo-literalists seize on this to interpret it to mean, just the legislatures, not the state governments as a whole, including their courts interpreting their own State constitutions, or their governors, and that they are free to defy their own state laws and just insert whatever undemocratic procedures they want, and/or simply designate electors to vote as they want, regardless of the outcome of elections in their states. The notion that this was the 'original intent' of the framers is beyond preposterous, and this view was, until recently, considered laughably fringe, but the Supreme Court has become so extremist, and so indifferent to the norms of how our democracy is supposed to work, that there was real fear they would adopt this ridiculous doctrine, with the result that states governed by right wing legislatures could simply override the democratic results of elections and impose minority rule. We have enough baked un non-democratic elements in our electoral system without this, which could plausibly have been the complete death of any semblance of democracy in this country. That the Court appears unwilling to take this extreme radical step is a small kernel of hope for retaining at least the basic framework of majority rule in America. 

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