Most of us know Neal Katyal as a crack MSNBC legal analyst. He’s also one of the most skilled appellate lawyers in the nation. Katyal just won one of the most important cases he’s ever argued: Moore v. Harper. It’s better known as the independent legislature case.
I’ll let Slate’s Mark Joseph Stern provide a summary of the facts of the case:
“Moore revolves around the North Carolina Legislature’s attempt to gerrymander the state’s congressional districts in favor of Republicans. The North Carolina Supreme Court held that this gerrymander violated the state constitution’s guarantee of free and fair elections. Republican legislators appealed the case to the U.S. Supreme Court.
That was an unusual move: As a rule, state courts have final say over the meaning of state laws and constitutions. But Republicans argued that the elections clause of the U.S. Constitution gives state legislatures unlimited authority to regulate federal elections, without constraints from state courts or state constitutions. That’s the “independent state legislature” theory. This theory is incredibly dangerous to democracy: It would nullify state courts’ ability to protect voting rights, destroy citizen-led redistricting commissions, and hand federal judges freewheeling authority to meddle in state election law. Taken to its extreme, this idea could empower state legislatures to overturn presidential elections, as Donald Trump wanted in 2020. The U.S. Supreme Court took up Moore this term to decide if the theory had any validity.”
The theory became a right-wing fetish because of the BIG LIE, which has consistently lost in court. It lost again as the Supremes sided with Katyal and the public interest groups he represents. It wasn’t even close: It was 6-3 with Kavanaugh, Barrett, and Roberts siding with the three liberal justices. Writing for the court, Roberts took account of the real life consequences of letting this wackadoo theory become law. It’s a rebuke to both the Kaiser of Chaos and Sam the Sham Alito who has no interest in the chaos unleashed by the Dobbs case.
It looks as if some of the Supremes are concerned about the court’s plummeting prestige with the public. It’s happened before. In 1937, there was the “switch in time that saved nine” during the Roosevelt court packing controversy. Justice Owen Roberts had voted with the majority to invalidate a boatload of New Deal legislation. He switched sides in West Coast Hotel v. Parrish, which marked the end of the laissez faire era at the court. Hence the switch in time that saved nine.
It’s unclear if this trend will continue but Moore v. Harper posed a serious threat to democracy. If it had been in effect in 2020, the independent legislature garbage could have led to the theft of that election. It’s been repudiated by SCOTUS thanks to persuasive arguments from Neal Katyal and his team
Repeat after me: Fuck Yeah, Neal Katyal.
The last word goes to Neal Katyal on The Last Word with Lawrence O’Donnell: