Wednesday, October 19, 2022


The New Yorker's Jane Mayer believes that liberals might now have a better chance of preserving democracy in America because now they have an important ally from the Republican establishment.
A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a brief today that included a surprising new signatory: J. Michael Luttig, who has been known for years as perhaps the most conservative Republican judge in the country. Now, though, he has joined a coalition of veteran lawyers and nonpartisan government-watchdog groups who are fighting against a far-right Republican election-law challenge—one so radical that critics say it has the potential to end American democracy as we know it.
The plaintiffs' argument in this case is that the Supreme Court gives state legislatures the absolute power to run congressional elections (unless Congress limits their power) and also gives legislatures unlimited power to decide the fate of their states' electoral votes. According to this theory, known as the independent state legislature theory, not even state supreme courts can overrule their decisions. State constitutions can't. Governors can't. This is extremely convenient because many state legislatures, especially in purple states, are so heavily gerrymandered that they'll never turn Democratic again, even if Democrats win a significant majority of the overall legislative vote. The plaintiffs concede that Congress can write laws limiting this legislative power, because the Constitution plainly says so, but -- again conveniently -- the filibuster means that Democrats can never legislate effectively in this area, because reforms can never win sixty votes in the Senate.

But J. Michael Luttig could save democracy, Mayer writes.
Having such a well-known conservative former jurist argue against the election-law challenge may carry some weight with the conservative super-majority on the Court, several of whom have ties to Luttig that stretch back decades. Justice Clarence Thomas, for instance, was personally shepherded through his contentious Supreme Court confirmation hearings by Luttig in 1991. At the time, Luttig served as the Assistant Attorney General in charge of the Office of Legal Counsel in George H. W. Bush’s Justice Department....

Luttig’s ties to Chief Justice John Roberts also go back years. The two worked closely together in the Reagan Administration as young lawyers, both under the tutelage of then White House counsel Fred Fielding, and again together as lawyers in the George H. W. Bush Department of Justice.
These seem like very tenuous connections. But even if they weren't, this isn't how politics in America works anymore. Politics in America, at least on the Republican side, is total war, with permanent one-party rule as the ultimate goal. The ultras of the GOP -- and most Republicans are ultras now -- aren't going to let Luttig's seemingly sterling right-wing credentials deter them from doing what they're hell-bent on doing. As far as they're concerned, he's just another elitist who needs to decide whether he wants to be on the bus or under it.

Liberals -- and now, I guess, pro-democracy conservatives -- think the opinions of elites matter to the illiberal whackjobs who will probably soon run the entire country. In fact, the only thing that might give them pause is popular outrage. They wanted to overturn Roe v. Wade even though they knew most of the country wanted to preserve it, and they just went ahead and did it. They were planning to pass the most draconian laws imaginable in every state where they could manage it, as a prelude to a national abortion ban, and they got partway there, but then it became clear that the public was outraged and might defeat many GOP candidates as a result. So now Republicans running for office are claiming that they're the soul of moderation on the subject of abortion. It's a partial victory, and clearly a temporary one, but it shows that broad-based public anger, at least in election years, is one of the few things the GOP fears.

If we could get the public as upset about the possibility that Republican legislatures will throw out their votes if they don't vote the "right" way as they are about the loss of abortion rights, that would be worth a hundred J. Michael Luttigs. But I don't know to get that done. Pro-democracy elitists, across the spectrum, need to understand that GOP radicals don't care what they have to say. The Supreme Court's radicals won't even pay attention to their arguments. But if ordinary people were making a stink about this right now, maybe they'd care about that. Popular anger is the only thing that has a chance of saving democracy now.

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