← The Political Scene | The New Yorker
The Political Scene | The New Yorker
The Flimsy Legal Theory That Could Upend American Elections
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The Flimsy Legal Theory That Could Upend American Elections
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- [00:00]
A
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B
You're listening to the Political Scene. I'm Tyler Foggatt and I'm a senior editor at the New Yorker. There's a connection between Bush v. Gore gerrymandering in North Carolina and Donald Trump's legal challenges to the 2020 election. They've all been justified by a flimsy legal idea called the Independent State Legislature theory, or islt. Some people argue that it gives state legislatures complete power over how they run federal elections, even if this means overriding the popular vote. Andrew Morantz wrote about the rise of ISLT for this week's magazine. In his story, one legal scholar said the theory was pulled out of somebody's butt. Another referred to it as right wing fanfic. But as fringe as it may be, this theory is dangerous and it's now up in front of the Supreme Court. Hi Andrew, thank you so much for being here.
- [02:07]
C
Yeah, yeah, of course.
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B
I'm really excited to talk to you about Independent State Legislature theory.
- [02:12]
C
Yeah, that's what they all say.
- [02:13]
B
I just keep hearing sentence that's never before been uttered. So what is islt as you call it in your piece, like in the.
- [02:20]
C
Simplest terms, basically, like there are two clauses in the Constitution, the elections clause and the electors clause. Okay, it's already maybe not super simple, but there's two parts of the Constitution that describe processes of elections. And both of them say that those processes should be directed by the legislature of each state. So the thing they should be in charge of is in the elections clause. It is the time, place and manner of federal elections. So when you're electing senators or members of Congress the way you do, the election is supposed to be directed by the state legislatures.
- [03:00]
B
And that's kind of familiar. I mean, that came up after the election, the 2016 presidential election, because after all the fears with Russia, people were like, why isn't this done in a more consistent, centralized way? But it's because of federalism, right?
- [03:12]
C
Totally. Yeah, like a lot of things. The framers of the Constitution were not foreseeing all the potential complications. They just wrote one sentence and it's been reinterpreted over the years. So it's like you. When you're going to have an election, the state legislature decides how. And that seems very, very simple until you start getting state legislatures that want to do things like, well, if we hold elections on a day when fewer poor people are likely to vote, or fewer college students are likely to vote, or people from this district can more easily access polls than this district, then you can start to see how these things that seem neutral on their face actually have discriminatory outcomes. And then you get gerrymandering and voter ID and all these things, all the sort of weapons of voter suppression that we now know, those all fall within this category of, well, we're just choosing how to administer an election. And so to the very extreme proponents of the independent state legislature theory, they read the Constitution to say whatever a state legislature decides to do in choosing how to administer an election, they can do it. And some of them think that that power is plenary, meaning no one can challenge it. So if you do the normal thing, which is take it to state court if you think they're out of bounds, the extreme proponents of this theory would say you're not even allowed to do that. It's just whatever the legislature says, that's the final word. And none of this would really matter in theory, except that we are now in this kind of Democratic doom loop cycle where we have these states like North Carolina, the one I was reporting from, where it's a 5050 state, basically. But you have this Republican either majority or super majority that is trying to lock in power for itself by using these seemingly neutral rules to give the party in power more power and to lock the other party out of power. So the effect of it is this extremely tailored partisan thing, even though it all sounds boring and bureaucratic.
- [05:08]
B
Yeah. Seems like a pretty good political tactic, honestly.
- [05:11]
C
Yeah. I mean, the basic trick of it, and we can talk more about this, is like if you wanted to attempt a power grab where you were trying to rewrite the rules of democracy, the best way to do it would be to do it in such a technical way that almost no one even noticed you were doing it. There was no one moment when it happened. It just kind of gradually happened over two decades. That would be a great way to do a power grab.
- [05:35]
B
Yeah. I think in your piece you refer to it as like a more general Democratic backsliding. And you talk about how we focus so closely on the Supreme Court cases that have to deal with. With these really kind of controversial culture war issues. But then there are cases like this one in North Carolina that people aren't really focusing on.
- [05:52]
C
Yeah, and I get it, because some of the activists who I was with, they would sometimes package this as the Dobbs of democracy, where they would compare it to the Dobbs case that overturned Roe v. Wade, and they were onto something in the sense that this is as big a thing, it's a huge deal. It's just that it's being engineered in such a way that there's no one moment when you wake up and, you know, you get a push alert on your phone, you're like, oh, no, democracy's over. It doesn't really work like that. But this concept of democratic backsliding, it does happen. And it's the kind of frog boiling in water thing that over time, you know, you kind of go, well, I vote, but then my vote doesn't really matter as much as it used to. And then it's kind of like this thought experiment of like, wait, when did democracies start to backslide?
- [06:39]
B
Actually, so you mentioned that there was one clause. What's the second one?
- [06:43]
C
Okay, so that was the elections clause, and then there's one called the electors clause.
- [06:47]
B
Okay.
- [06:47]
C
The branding on this is not exactly like Coca Cola level. It's hard to follow. But okay, as everyone knows, we don't just vote for the president in this country. We vote for a slate of electors who go to the electoral college and represent their state. Right. Again, normally this is just a formality. And normally the person who won the popular vote is also winning the Electoral College vote.
- [07:09]
B
But these are not normal times.
- [07:11]
C
These are not normal times. And so if there is a close election or an allegation of impropriety or fraud, then what happens is you could, as happened in 2020, you could have lawyers who are arguing that you should actually have two slates of electors. So the whole thing around January 6th was to the extent that there was a legal theory, it was the independent state legislature theory. So rather than CNN or Fox News making the call, or rather than the Supreme Court making the call, the very die hard proponents of this constitutional theory said the only people who can make that call are the state legislatures. So if the legislatures of Georgia and Arizona and Texas and wherever want to send Trump electors to the Electoral College, according to these people, they have the power to do that and essentially pick the president. The whole phrase independent state legislature theory, another word for it might be rogue state legislature theory, because what it's independent of is the people, the state constitution, the state courts. Right? That's that kind of independence that we're talking about. Now, that's a very fringe theory, and most legal scholars do not agree with it.
- [08:21]
B
Who are these people?
- [08:22]
C
Yeah, 20 years ago, they were very, very fringe. One of the guys I write about in the piece is this lawyer named John Eastman, who was the dean of a law school, Chapman Law School, and he works with the Claremont Institute, this think tank in California. And for decades he's been out there saying, well, these clauses of the Constitution say the word legislature. And my reading of that is the legislature's power is absolutely after 2000, when Florida was too close to call, he was flown in by the state legislature of Florida overnight because they wanted an expert in the Electoral College. And he was the guy they found who would say the thing they wanted him to say, which was, you guys, the legislature get to decide this election. Now, it didn't end up going that way because the Supreme Court stepped in, but if it had gone Eastman's way, it would have been up to the state legislature. But one little sort of historical Easter egg that was tucked away in the Bush v. Gore concurring opinion by Chief Justice William Rehnquist, which was signed onto by Clarence Thomas and Antonin Scalia said, actually we would have found for Bush on the grounds of the independent state legislature theory. They didn't use that word, but they said the legislatures are the ones that should be in charge. And nobody really picked up on that because concurring opinions don't really have any legal force. And also Bush v. Gore was this weird thing where they wrote a majority opinion and then said, please pay no attention to the reasoning of this opinion because they were embarrassed by it, basically. But it was just sort of hidden away there. What I called in the piece was a Chekhov's gun of the American experiment. It was just like sitting there in the corner. No one paid that much attention. I talked to a lot of legal scholars, law students, law professors. They all said no one had even heard of this except for a couple of people in some obscure corner of the law. Law journals are full of weird thought experiments like this. But it just so happens that this Chekhov's gun is just kind of lying around. And then 2020 rolls around and a bunch of people, including John Eastman himself, essentially come to the Trump legal team and say, hey, while you guys are throwing a bunch of stuff at the wall, why don't you try this? And this ends up being the legal rationale they use. And then after that it goes to the supreme court. So in 2022, four justices Alito, Thomas, Gorsuch and Kavanaugh all said, well, we should hear this case, because, you know, this whole independent state legislature thing keeps coming up. Why don't we hear a case and just decide it once and for all? So it kind of gets to the point where this very weirdo fringe theory that most top tier legal experts really think isn't even worth giving the time of day, among the tiny minority of people in that profession who take this seriously just happen to be 44 sitting Supreme Court justices and like, maybe five or six sitting Supreme Court justices.
- [11:14]
B
It's weird because it's a theory that sounds so unconstitutional and yet it's obviously based very much in the language of the Constitution. And so when you say that it's weirdo and fringe and off base, I guess, how else would you interpret that clause of the Constitution, the elector's cause? Like if it says that, you know, the authority is delegated directly to the state legislatures, like, what else would it mean?
- [11:35]
C
Yeah, totally. And so this is the claim that people in this camp often make, like, legislature means legislature, what else could it mean? So one law professor who I quote in the piece says that plaintext reading of it is clearly the better reading for anyone who has not gone to law school or thought about it for more than five minutes. So me, yeah, well, everyone, honestly me before I started reporting it, because basically, you know, the Constitution is one of these texts that is very economical, very terse and, and very old. You know, the right to bear arms doesn't include all the kinds of arms that have yet to be invented. It's not thinking through all the different scenarios. So what the anti islt people argue, and that's the majority of the profession, is they say, look, there are some times when like the word Congress just literally means Congress in the Constitution, like the President shall deliver a State of the Union address to Congress, means like you walk over to the building and like, stand in the Congress building and deliver that address. Other times Congress means like the government, like Congress shall admit new states to the Union, means like Congress and the President and maybe in consultation with judges, shall admit new states to the Union. So basically what they say is, yes, the legislatures initiate and direct the process, but if they are violating their own state's constitution, there has to be an avenue to challenge that in state court. And, and in fact, there's a long line of cases from the US Supreme Court saying this. So there was a case just in 2019 called Rucho v. Common Cause, where John Roberts, writing for the majority, writes this opinion, where he says, look, we're not going to take care of gerrymandering on a federal level because we don't think that we, the Supreme Court should be in the business of doing that. But if you have a problem, take it up with your state court. And that's like in the opinion that was written four years ago. So then these groups go back and bring up their gerrymandering concerns in state court, and then the state legislature challenges that and says, no, no, no, you can't challenge us in state courts. We're the legislature. We have this absolute power. Right. So the debate is if there's a challenge or if it goes off the rails, what do you do about it?
- [13:42]
B
It's like the kind of thing that would be invoked in case of an emergency. But it also seems like in basically every election since 2016, there has been one party, usually the Republicans, saying that there has been fraud or an emergency of some kind.
- [13:57]
C
Right.
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B
It seems like fraud can be pretty easy to conjure out of thin air.
- [14:02]
C
Totally. We've seen it many times. And so this like break glass in case of emergency thing just keeps coming up. And you know, one of the sort of phrases that kept coming to me in this reporting was plausible deniability. Right. So the way that Democratic backsliding tends to work. Right. Is that you don't have some just dictators step in and say, now henceforth, all votes shall go to me. What it looks like is some very facially neutral thing with the veneer of legitimacy and plausible deniability where it just says, well, it's, you know, it says legislature, so we're going to let the legislature do it. And then the fact that the legislatures happen to be majority controlled by one party is like, well, that's just a coincidence. Who could have known that? It just so happens as a historical twist in all this, that this theory was essentially invented by the George W. Bush legal team in the post 2000 election period when three of the lawyers working for that team were Brett Kavanaugh, John Roberts and Amy Coney Barrett.
- [15:01]
B
That is maybe the craziest part of your piece is just like the, the Bush v. Gore crazy blast from the past, like just the cameos from the current justices on the court who were young lawyers at the time and yeah, were involved in different ways with the, with the recount.
- [15:16]
C
Yeah. And it' on some level, it's not shocking that lawyers make the best arguments that are available to them. And so lawyers try to throw things against the wall. And actually, when Amy Coney Barrett was working for Bush in Martin County, Florida, what behooved that campaign at that time was to count more mail in ballots. Right. And now Republican candidates famously want to count fewer mail in ballots. So, you know, I mean, you look, you look abroad and this happens all the time. You have, in fact, in Israel right now, the Netanyahu coalition is trying to decrease the power of the judiciary, and in the US the right wing is trying to increase the power of the judiciary. So then people will say, well, this is just, you know, the neutral exercise of different judgment according to what different governments think is the best way to handle their various proposals. And it always hinges on, well, this is just the legitimate use of state force. We're not going outside the bounds of the law, we're not breaking any rules. This is all accounted for in the founding documents. And you know, in the case of islt, it's not coming out of nowhere. It's very clear where it's emerging from in the Constitution. It's just, I think it strains credulity to say that it's just a coincidence that it just happens to favor a particular political outcome.
- [16:31]
B
Yeah. I mean, is it the kind of thing that has to be almost fundamentally right wing just because of the makeup of most state legislatures? Like, is because, I mean, you would assume that, you know, Republicans would also be worried about a Democrat controlled state legislature using this against them. Like, I don't know, I feel like anyone who's interested in democracy at all would be concerned about that outcome.
- [16:50]
C
Totally. Yeah. And that's one of the arguments that gets made in the amicus briefs and stuff is like, this is obviously gonna come back to bite anyone who institutes this. And I don't know if there's a long term plan here. And I mean, just to be clear, I don't mean to be conspiratorial about it, but I do think that everyone can read the newspaper, including Supreme Court justices, and everyone can know what the outcome of a particular policy is. So, like, for example, hypothetically, if a state legislature were to pass a law saying there will be one polling place in every city or town in this state, we all know what the outcome of that would be. The outcome would be people in cities can't really vote because there's like one polling place in Milwaukee or Atlanta and every little town with no traffic light has one polling place that would disproportionately disempower and disenfranchise people in cities who tend to vote for Democrats. If you tried to pass that law, the backstop, the check against that would be judicial review. So if you get rid of judicial review, yes. It's going to empower both your allies and your opponents. And I guess then the hope is just like we take more power before they do. I mean, it gets pretty, you know, dark and Hobbesian pretty fast.
- [18:12]
B
Coming up, Andrew Morantz on what will most likely happen with the Supreme Court case in North Carolina. America is changing and so is the world.
- [18:27]
C
But what's happening in America isn't just a cause of global upheaval. It's also a symptom of disruption that's happening everywhere.
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B
I'm Asma Khalid in Washington, D.C. i'm.
- [18:37]
C
Tristan Redman in London, and this is the Global Story.
- [18:41]
B
Every weekday we'll bring you a story from this intersection where the world and America meet.
- [18:47]
C
Listen on BBC.com or wherever you get your podcasts.
- [18:55]
B
So can you talk a little bit about Moore versus Harper and just what has sort of transpired between when you started reporting this piece and now?
- [19:03]
C
Yeah. So the legal theory is the islt. The case is Morvi Harper. Moore is. Tim Moore, who's the speaker of the House of North Carolina, has led the state Republican Party there in the House for a while now. And when Republicans were in the minority in the state, House wanted to do things like independent redistricting commissions to get rid of gerrymandering. And then once they took control, he flipped his position on that. And I actually asked him why and he was like, well, I was Wrong then. And I'm right now, you know, like, so that's more. And Harper is Becky Harper, who's one of several voters who are suing because they think that their votes are diluted under these. Under these maps. So I spent while hanging out with some of the activists who are working for Common Cause, which is one of the groups that is bringing this suit. And, yeah, basically what happened was Common Cause and all these groups sued to overturn the maps. The North Carolina Supreme Court said, we agree with you. These maps are illegal under the North Carolina state Constitution because there's a provision in the North Carolina constitution that says, all elections shall be fair.
- [20:14]
B
And.
- [20:14]
C
And then Moore, the Speaker of the House, appealed to the Supreme Court and said, hey, they can't do this. They're challenging our authority, and we're the legislature. And no one really thought that would be taken up by the Supreme Court, because usually when a state court settles a matter of state law, that's the end of the road. It's very, very rare, if not unprecedented, that you can appeal over the head of a state court on a matter of state law. But then the Supreme Court takes the case, and they say, you know, we want to settle this independent state legislature thing. So they agree to take the case on the last day of the last term. So they basically did, like, Dobbs Bruin reversing a bunch of gun control laws, EPA reversing a bunch of environmental regulations. And then they were like, oh, by the way, next year we're doing democracy boom. And then, like, summer break. Have fun at the beach, everyone. So that was like, a nervous summer for a lot of democracy people. It's also like, the context here is we sort of talk like, oh, there's three liberals, three conservatives, and three moderates. I'm doing, like, heavy air quotes around the word moderate. But, like, as I said, all three of those moderates worked with the George W. Bush campaign in Florida. So they obviously have or had partisan alignments. Also, like, John Roberts does not have a good track record when it comes to this stuff. Like, he's been chipping away at the Voting Rights act very consistently for many, many years. So I think people had a reasonable concern. And then what happened is between June when they took the case and December when they argued the case, a bunch of things happened. There was more time to read some of the briefs. And a lot of briefs came in from all across the political spectrum saying, this is really threatening. This is ridiculous.
- [21:53]
B
People on the right as well, people.
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C
All over the right. A co founder of the Federalist Society, Arnold Schwarzenegger, Weyden. And, you know, some of it was that. But I also not to be too cynical about it, but I think another thing that happened between when they took the case and when they heard the oral argument was the midterms. And in last year's midterms, Republicans were supposed to have this big red wave. The red wave didn't happen. And a lot of the thinking behind why was maybe the court went ham and it freaked out the median voter. And so this is precisely the kind of thing that is not supposed to matter to you. If you're a Supreme Court justice, you're just supposed to be floating in an apolitical void. But the sort of more legal realist folks I talked to for this piece were like, of course that matters to you if you are former Republican lawyer John Roberts or former Republican lawyer Brett Kavanaugh, and you see that the decisions that you've just handed down may have contributed to the biggest underperformance of the Republican Party in a midterm in generations. We don't know. They don't tell the public what they're thinking or they don't tell the public anything they don't want to. But it was clear that by the time the case came before the court, Roberts and Barrett and Kavanaugh seemed much more skeptical. And you can tell that from the questions they ask at oral argument. So Kavanaugh would say, like, well, this goes way beyond that concurring opinion in Bush v. Gore, which, by the way, you're not supposed to cite a concurring opinion in Bush v. Gore as precedent. It is not precedent. But they kind of just acted as if it were and said, well, even by that standard, this seems to go a little far. Your position seems to go further than Chief Justice Rehnquist's position in Bush v. Gore, where he seemed to acknowledge that state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that the state court had not significantly departed from state law. On he drew on a body of precedent. We still don't know because as of this recording, they haven't issued an opinion. But it seems like if the ISLT advocates were hoping for six very willing pliable questioners, they did not get that.
- [24:11]
B
So what do you think is going to happen with more. Yeah, if you had to put money on it.
- [24:16]
C
So I was in D.C. in December when the oral argument happened, and right away, I think it was Barrett who first asked a skeptical question.
- [24:27]
B
Oh, sorry. Please finish.
- [24:30]
C
I was just going to ask, is your formalistic test just a way of.
- [24:33]
B
Trying to deal with our precedent, or.
- [24:34]
C
Are you rooting that in the Constitution itself? Because you do have a problem with.
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B
Explaining why these procedural limitations are okay, but substantive limitations are not.
- [24:43]
C
Well, you, Honor, right away it was like, okay, this is not the timeline where they just do away with checks and balances and, you know, big parts of democracy, like, they're not going to go all the way, we think, but who knows? I mean, weird things can happen. But that was all assuming that they were going to write an opinion. And that still could happen. There still could be an opinion. There could be, like a split opinion where there's three, three and three, and no one can really get on board with all of it. The only thing that seems pretty certain is that the three Democratic appointed justices are not having any of it. And Alito, Thomas and probably Gorsuch seem just like super into it. And then the question is, what do the three in the middle do? So we might get an opinion that is like, very confusing and muddled, and it could be narrow, it could be broad.
- [25:34]
B
Is there a way for them to kind of compromise where it's like, you can gerrymander, but you can't just decide that Trump won?
- [25:40]
C
Yes, there are kind of ways to do that. I mean, there are various people telling me different ways that they think the court could kind of split the baby here. There aren't that many ways.
- [25:48]
B
Roberts loves splitting the baby.
- [25:49]
C
I know, I know. That's totally his thing. There was a New Yorker cartoon a little while ago that was like a moderate king, and it was like, off with some of his head. It could be a version of that moderate king approach. I mean, it's hard to know exactly the shape of that. They were talking a lot. I mean, this was like a three and a half hour argument. And even the people who are super nerds on this were like, oh, they're really getting into the weeds here. But they were talking a lot about standards. Like, what standard would you need to apply for a state court to get in the way of a state legislature? It would have to be a very high standard or a sky high standard or an astronomical standard, but only above a certain standard could you get in the way of what the legislature does. So it wouldn't be. Legislature's power is totally absolute, but it's like more than we have heretofore treated it to be. Part of. The thing is, though, you know, a lot of times there's a whole set of legal scholars who are sort of urging caution about this and like, let's not wet the bed, let's not be crazy. And they'll always say the set of things that could really come from this, the calamities that could befall us are pretty constrained because you can't change the election result after election day. The Constitution is clear on that. So you, you set the election day and then you can't. The legislature can't just come in and say, we declare that the other guy won.
- [27:09]
B
Yeah. It almost seems like they would have to do it preemptively.
- [27:11]
C
Yes. So, but what I keep asking and no one, if anybody listens to this and tells me why this can't happen, like, please tell me, cuz I would sleep better at night. But what I don't get is if you're the legislature of X or Y state and you pass a law right now.
- [27:24]
B
Pass a law?
- [27:24]
C
Yeah. Saying now we determine if there's any allegation of fraud, we determine the outcome and then there will be allegations.
- [27:30]
B
We'll take the popular vote into account, you know, but you know, at the end of the day, it rests with us if there is fraud. And then all you have to do is just trigger a fraud concern, you know, halfway through election day.
- [27:39]
C
Exactly. So if there's a Supreme Court opinion, would it explicitly rule that out? I don't know. I don't think so. They don't like going into hypotheticals like that. So this is where you get into the baby splitting, where they're like, well, legislatures can do some things, but not other things. But are they going to rule out all the weird rogue things that they might try? I don't know. And then there's a whole other set of possibilities which is that they actually just don't decide the case at all. And they dig it, which is called dismiss as improvidently granted. Like sort of throw it out. And that could happen because originally, remember I said they had the maps, they challenged them in state court. The North Carolina state court threw out the maps. What happened is also in last year's midterms, the Republicans did win in the judicial elections in North Carolina. So the state court used to be majority Democrat when they issued this original opinion. Now it's majority Republican. The new majority Republican court in North Carolina, one of the first things they did is say, we're gonna rehear this case, the case underlying Morvy Harper.
- [28:41]
B
That's weird, right?
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C
For no stated reason. Totally weird. That doesn't happen does not happen. It's like, maybe, maybe sort of has some precedent where there's been some new development or some new piece of evidence or something has changed. But in this one, nothing has changed. They just say, we want to rehear the case. And basically the unstated reason is we didn't have the votes then. We have the votes now. They rehear the case. They decide that this thing last year that they decided was unconstitutional under their state constitution is now constitutional. We reversed the opinion. We reversed the decision. I mean, again, it's like this concept that I bring up a few times in the piece of autocratic legalism, where it's not illegal almost by definition, for a court to decide a case differently than they decided it before. Like, if a court does it, then I guess it's legal. But it's one of those things that, like, sure, it has the bare appearance of legitimacy. It has plausible deniability. But, like, everyone can see what's going on. You didn't like the outcome, so you changed it because you now have the power to change it. Right? So then it's that gaslighting effect where you feel kind of crazy being like, wait, wait, wait, but can you do that? Like, and the fact that they can do it legally doesn't really make it that much better. And then the question is, okay, now the Supreme Court has yet to issue their opinion on an underlying set of facts that have now changed. So do they just issue an opinion on whether to reverse the initial North Carolina thing, or do they now say, well, the state court has worked it out so we don't have to weigh in? And again, the sort of legal, realist, political, cynical read on it is that it's just a function of who thinks they do or don't have the votes. And I think the best faith reading of why Kavanaugh and Gorsuch and Alito and all of them wanted to take the case. What they said is, we need to settle this question because it keeps coming up and before there's a presidential election, we need to know.
- [30:34]
B
Yeah, there's definitely an element here of, like, even if this is a batshit legal theory, if people are taking it seriously and it has, you know, the potential to decide the outcome of an election, someone needs to say something or weigh in on it. And, like, the only people who can really do that in this case is the court.
- [30:49]
C
Right. So there were also, as much as there were democracy activists and people panicking about this, there were a few kind of Pollyanna optimists who were saying, no, no, no, they're taking this case so that they can bat it down and laugh it out of the room and say in a ringing unanimous nine zero endorsement, they'll all hold hands and sing Kumbaya and say, we will not stand for this flimsy legal argument. That doesn't seem likely to happen either. So there's a whole range of opinion from people who want the Supreme Court to issue an opinion because they hope it'll be the opinion that kills ISLT once and for all, or the people who don't want them to do it because they assume that whatever the Supreme Court does, it'll be scary and bad to all kinds of people in the middle. But it seems to me like everyone will just be disappointed to some degree by what happens. It seems like it's gonna be either something muddled or something that's kind of confusing. And then two things happen with that one, this kind of zombie legal theory continues to just like trudge along, just kind of waiting for the next time it can be used. And the other thing that happens from a more like popular we the people perspective is, and when this opinion either does or doesn't come down, it seems like there isn't going to be a front page story about it in the newspaper because there are a dozen other crises per day for people to pay attention to. It just continues in this very gradual boiling frog kind of plotting. This is the backsliding or the eroding. So in that opinion, there might be all kinds of unprecedented ways that the checks and balances are chipped away at, but because the top line of it isn't Supreme Court kills democracy like no one will even notice it happened.
- [32:25]
B
Yeah. And the craziest part of your piece is probably the final paragraph where you just talk about all the other, you know, islt like theories that could also disrupt our elections.
- [32:37]
C
Yeah. You can't just predict and prevent by law every single eventuality. So it would, I guess, be nice if either in the Constitution or in the US Code or something, it said don't be a really crazy rogue bad faith legislature that pretends that someone else won the election. Right. But it doesn't work like that. That is why, unfortunately, I wanted to end the piece on that kind of ambiguous, ominous note, which is Aziz Haq, who's this constitutional scholar, was sort of saying to me, it is in some ways really majestic how vague the Constitution is. That was his phrase, majestic vagueness. It can be nice. Right, because the Constitution was written at a time when Women didn't have rights and all these minority groups didn't have rights. And you can read those things into the Constitution because of how vague it is. And isn't that wonderful? And yet the obvious corollary of that is if your motives are to do the opposite, to take power away from people, you can find plausible ways of doing that too. And so there is not one neat little trick that fixes that in one fell swoop. It's like you kind of have to have like an entire culture of democracy that is inoculated against that. And that's a really hard thing to build. And there isn't one nifty argument you can make in a legal journal for how to solve that. It's a pretty complicated thing, actually.
- [33:59]
B
Yeah. To assume that people will act in good faith.
- [34:01]
C
You know, I mean, I don't want to be treacly about it. I don't think it's like if we all just saw each other at the bowling alley more, we wouldn't have any strife. Like there is real political contention and real power dynamics and ideological struggle. But you can't solve all of it in this kind of technocratic, bureaucratic way. You can't just say if the rules were good enough, it would constrain all potential bad faith activity. It was never going to be that way. So when 2020 happened without a legal or paramilitary autocratic breakthrough, there was this very strong impulse from a lot of people to say, see, the system held. The guardrails were always strong enough to hold back this sort of thing. And it was this kind of institutionalist, like self congratulatory moment, like this was always fated to be this way. And I kind of worry about a moment like that happening now. If you, you know, there were all these people like me and the people I was talking to in the piece who were really worried about a case like this. And then the opinion, either there is no opinion or the opinion is kind of, you know, a nothing burger. And people go, see, the court was never going to go for something like this. And see, this is why I've always held fast to my faith in this institution. And it's like, I just don't think that the fact that we pulled the emergency brake in time for the car not to fall off the cliff is like the guardrail saving us from that cliff is so great and impenetrable. You know, I just don't think that.
- [35:24]
B
We definitely shouldn't reinforce it and we should go driving again right now down the exact same road.
- [35:29]
C
Yeah. In fact, we should use a self driving car cause they seem fun.
- [35:34]
B
Well, thank you.
- [35:35]
C
Yeah.
- [35:38]
B
Andrew Morantz is a staff writer at the New Yorker. You can read his story, how a Fringe Legal Theory Became a Threat to democracy on newyorker.com now this has been the political scene. I'm Tyler Foggit. The show is produced by Michelle Moses with help from Sidney Cobb and Catherine Winter. Our executive producer is Stephen Valentino. Our theme music is by Alison Layton Brown. Enjoy the rest of your week and we'll see you next. Katie. I'm Katie Drummond. I'm Wired's Global Editorial director.
- [36:15]
C
I'm Michael Kollori, Wired's Director of consumer, tech and Culture.
- [36:18]
B
And I'm Lauren Good. I'm a senior correspondent at Wired. And our show, Uncanny Valley is about the people, power and influence of Silicon Valley.
- [36:27]
C
And right now, Silicon Valley and Washington have never been more intertwined. So each week we get together to.
- [36:33]
B
Talk about a big story, often at the intersection of tech and politics.
- [36:37]
C
Right. So whether we're talking about Trump, Coin, Doge, or Elon Musk, we will always explain how these Silicon Valley forces are.
- [36:45]
B
Affecting Washington and how they affect you.
- [36:48]
C
Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode from prx.