Calvinball with footnotes

Here’s a good long piece in the New Yorker on the Independent State Legislature Theory. One of the rather odd features of American constitutional law is that something that almost literally nobody had ever even imagined could be the case for 200-plus years can suddenly become “the original understanding” of the Constitution, if five lawyers say it is:

Eastman still believes that Biden’s victory was wrongly certified, and that many recent elections have likely been marred by voter fraud. (He even suggested that the dimpled chads in 2000 were evidence of intentional malfeasance, which was a new one on me.) Eastman’s role in the attempts to overturn the 2020 election had already landed him in a good deal of trouble: he’d been brought in for questioning by the January 6th committee, had his phone seized by the F.B.I., and was in danger of being expelled from the State Bar of California. Still, he claimed not to understand what all the fuss was about. Until recently, he said, “I thought everybody agreed that the legislatures got to do this.”

A few years ago, many pundits might have considered it unthinkable that the Supreme Court would give a hearing to a theory such as I.S.L.T. But recent events have changed the consensus view of what’s possible. Two days after the 2020 election, Ginni Thomas, Clarence Thomas’s wife, texted Trump’s chief of staff a meme asserting that the “Biden crime family & ballot fraud co-conspirators . . . will be living in barges off GITMO.” The following summer, during a reunion of Justice Thomas and his former clerks at a resort, golf course, and shooting club in West Virginia, Ginni posed for a photo, according to the Washington Post. She was flashing a double thumbs-up and standing next to a grinning John Eastman. On the merits, I.S.L.T. may deserve to be rebuked in a lacerating 9–0 decision. But “the merits” don’t decide what the law is. Judges do.

The bottom line is that I.S.L.T is something that was made up by a couple of super-fringey law professors, because it created a “legal theory” by which two institutions dominated by Republicans — state legislatures and federal courts — could override the entire democratic process, since Republicans can’t win fair national elections these days.

The scary thing is that this nonsense has at least four votes for it on the SCOTUS. Whether that number gets to five is something we may well find out in November or December of next year.