Have you ever considered the possibility that they actually believe this shit?

A great moment in Murc’s Law:

There are two ways for liberals to handle the Supreme Court’s conservative majority. They can stay the course, not pull any punches, and try to rally a political backlash against the court whenever they are defeated. Or they can adopt a more moderate constitutional position, and focus on persuading two conservative justices who can limit the originalist legal advance in particular cases.

“Originalist” like that decision striking down a far-from-unusual New York statute enacted during the Taft administration based on expanding a precedent first handed down in 2008? Get outta here with that, please. They’re Republican partisans, not “originalists.” (Quick quiz: quote the “originalist” passages in Shelby County v. Holder.)

In last term’s Dobbs v. Jackson Women’s Health Organization abortion case, liberals took the first route. That seems to have undermined Chief Justice John G. Roberts Jr.’s effort to win the support of one more justice for his compromise outcome — upholding Mississippi’s abortion restriction without overturning Roe v. Wade. Liberals may be poised to make the same mistake in a high-profile elections case the coming term, with similar consequences.

In Dobbs, the five-justice conservative majority pointed out that Roberts could not identify “any of the more than 130 amicus briefs filed in this case that advocated” his middle-ground approach. The legal and activist community was divided between liberals insisting the court say Roe was right and conservatives insisting the court say Roe was wrong, and the majority chose the latter.

Perhaps a push by liberal litigants and their supporters to flesh out a halfway resolution in Dobbs would not have changed the outcome. But the case still highlights the risks of unyielding liberalism before a Supreme Court where justices appointed by Democratic presidents fill just three seats of nine.

Am I going crazy here? Roberts still issued his compromise concurrence in the judgement. The joint dissent made it very clear that they would have joined any parts of a Roberts opinion re-affirming or even refusing to overrule Roe had they been able to command a majority. They weren’t, because Kavanaugh and Barrett don’t think women have any reproductive rights and so joined the opinion reflective of their views. And liberals didn’t joint any part of it because there’s no reason to join a compromise position that can’t get five votes. Anybody who believes that liberals filing a few bad faith briefs arguing that Roberts’s position was actually their first choice on the merits would have convinced anyone from the majority opinion to join Roberts must give at least 70% of their annual income to the U.S. Supreme Court Marshall and Wallet Inspector.

The argument makes no sense coming, and it makes no sense going:

There’s one problem: Most justices on the Supreme Court may disagree. Five of the court’s conservatives have joined opinions that credit state legislatures’ constitutional responsibility for election law. Only the newest conservative justice, Amy Coney Barrett, has no record on the issue.

If this court is presented with a binary choice on ISL next term, a majority could endorse it — just as it rejected Roe when given a binary choice last term. Yet legal liberals seem uninterested in putting forward an intermediate constitutional theory that might win over Barrett, Roberts or Brett M. Kavanaugh.

Such intermediate theories likely exist. University of Iowa law professor Derek Muller, for example, has contemplated a “weak version” of ISL. It would hold that the legislature doesn’t have total autonomy over elections, but that “there is some outer bound” to how far its laws can be bent by other state officials before the federal courts can step in.

Indeed this argument is if anything even sillier than the Dobbs argument. An opinion implicitly holding that women have the right to choose an abortion in the first trimester, while highly inadequate, would be materially better than the new status quo. An Independent State Legislature doctrine with some theoretical point in which it would be acceptable for state courts to intervene, conversely, would be meaningless; this Court will never find any case in which a Republican legislature doesn’t get its way meets the criteria for judicial intervention. There is no version of ISL doctrine that liberals can “live with” because it wouldn’t meaningfully constrain Republican judges going forward. So not only is there no reason to believe that liberals can persuade Kavanaugh or Barrett to do anything they don’t want to, this grand bargain would accomplish nothing but generate news stories about how Even the Liberals on the Supreme Court believe that it’s generally illegitimate for state courts to interpret their own statutes and constitutions in election disputes. I’ll take a hard pass on that thanks.