SCOTUS Rejects Radical GOP Vote-Rigging “Theory,” Could Still End Affirmative Action & Debt Relief
Written by GRB on 29/06/2023
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This week marks the end of the Supreme Court’s current term. Tuesday, voting rights advocates welcomed a decision in a major election law case that preserved checks and balances in elections. In a 6-3 decision, the justices dismissed the so-called independent state legislature theory that state legislatures have nearly unlimited power to make rules for federal elections and draw partisan congressional maps that are not subject to review by state courts. This is White House spokesperson Olivia Dalton responding to the decision in Moore v. Harper.
DEPUTY PRESS SECRETARY OLIVIA DALTON: We’re pleased that the Supreme Court rejected the extreme legal theory presented in this case, which would have interfered with state governments, which would have opened the door for politicians to undermine the will of the people.
AMY GOODMAN: This comes as the Supreme Court is set to issue major decisions Thursday and Friday, including on student debt and affirmative action.
For more, we’re joined by Michael Waldman, president and CEO of the Brennan Center for Justice. His new book on how the Supreme Court’s conservative majority has ushered in a radical new era is titled The Supermajority: How the Supreme Court Divided America. His piece on Tuesday’s ruling is headlined “The ‘Independent State Legislature Theory’ Is Dead.”
Michael, welcome to Democracy Now! It’s great to have you with us. Why don’t you start off by explaining who Moore and who Harper are, and why this decision, which for many may sound very bureaucratic, is so fundamental and is such a surprise in the way the Supreme Court, the conservative Supreme Court, ruled?
MICHAEL WALDMAN: It was fundamental. I don’t know that it was such a surprise, because this was such a crackpot idea that it would have been an utter revolution in our democracy had they done anything other than what they did. The facts of the case make that pretty clear.
North Carolina is an evenly divided state, Democrat and Republican. They have a Democratic governor and Republican Legislature. The Legislature drew a congressional map that was very, very gerrymandered for the Republicans. It was 11 Republican seats and, I think, three or four Democratic seats.
The state Supreme Court there said, “That’s unconstitutional under our state Constitution.” And the Legislature said, “You have no role here. We get to do whatever we want.” They claimed, and some of the MAGA lawyers have begun to claim, that the Constitution gives state legislatures the power to set election rules for federal elections with no checks and balances from state courts or constitutions or governors or the voters, and that nobody noticed it until now. And it’s a crackpot idea and has never been found by another court.
So, it’s great that the court rejected it. They should never have taken the case. They were pretty strong in the language they used. But by this point, it was not such a surprise. I will say the Voting Rights Act case a couple of weeks ago was more of a surprise to those of us watching the court.
JUAN GONZÁLEZ: And, Michael, what does this mean now in terms of the redistricting of North Carolina? What happens now in that state in particular?
MICHAEL WALDMAN: Well, North Carolina, interestingly, will be affected by this less than many other places. That’s because during the most recent election the voters chose conservative justices for the state Supreme Court, so even though the Supreme Court there blocked the gerrymander last year, the new Supreme Court majority has said, “Oh, it’s just fine.” So, this doesn’t actually affect what’s going on in North Carolina.
However, it will continue to empower state courts around the country to block gerrymanders, to police the legislatures and to keep legislators from trying to entrench themselves or advance their party with these egregious maps. So it’s pretty important in that way.
It also makes clear that as we look toward 2024 and the potential problems that we would have in that election, that, again, state courts can play their appropriate role. You know, there’s some language in there that gives people a little bit of pause to make sure that it doesn’t turn into the next problem, but it basically says the way it’s been done for the last 200 years is how it should be still done.
AMY GOODMAN: So, talk about your reservation that this isn’t quite as much of a victory as some are hailing it, the whole issue of the court saying that state courts themselves can’t go beyond their bounds, but giving a lot of power to the federal courts, Michael Waldman.
MICHAEL WALDMAN: Yeah, we think this is an extraordinary victory. That is the worry that some observers have, and, of course, it’s worth watching out for. I would say, in some respects, that this was not new, that the federal courts already were going to police the state courts if they really went off the rails. The standards here are a little fuzzy. And there’s always a risk that it could become grounds for federal judges to try to interfere in what’s going on in the states. Perhaps I’m a bit cynical, but I think they already had that ability anyway, so I don’t think it changes that much.
But some who’ve looked at it worry that that’s the next problem, that this — and I have to refer to the independent state legislature theory. I have to remember to refer to it. First of all, calling it a “theory” is very generous. It’s a crackpot idea. It was never actually a theory. But it’s in the past tense. It’s been rejected very roundly. But, of course, we want to make sure that these Federalist Society right-wing federal judges don’t overstep their bounds in policing what state courts do when they’re dealing with federal elections.
JUAN GONZÁLEZ: And, Michael, I wanted to ask you about one of the upcoming decisions that millions of Americans, especially those with student debt, are eying now, that will occur in the next few days. What’s your sense of how the court will act? Also, there are progressive activists who argue that if the Supreme Court strikes down Biden’s debt relief plan, that he still has the authority to forgive student loans under the Higher Education Act. What’s the potential of him doing that, and also the advisability of that as an alternate path to debt forgiveness?
MICHAEL WALDMAN: So, you’re exactly right that there are a few more days left in the Supreme Court term, and they still have quite a few big decisions to announce. One of them is this student debt relief plan. This is something that even the Biden administration worried was on shaky constitutional ground when they did it, for something like this to be done by him through executive action.
The interesting question here is: Will the court strike it down, or will they say, “Well, we might not like this, but the people who are bringing this case lack what’s called standing, meaning they can’t really show they were injured by somebody else getting their student debt relieved in that way”? And there was a ruling the other day where they blocked — or, they rejected Texas’s effort to force the Biden administration to change its immigration policy. They said Texas lacked standing. And it may be that this is an area where they’re saying to red states or right-wing activists, “You know, we’re a pretty conservative court. We’re a pretty extreme court. But you can’t just take an op-ed and send it to us and ask us to implement it. You need to follow some more of the rules.”
I think it’s also the case, looking forward, that it’s been a conservative crusade to limit standing in the federal courts, because they don’t want environmentalists and activists and community groups to be suing conservative administrations over things like the environment and other matters.
You know, whether and how there might be other steps on student debt that the administration could take partly will, I guess, depend on what kind of ruling they get. The Biden administration has been reluctant to do this. They have generally not pushed the executive power beyond the lines of its extent, and I don’t know whether they would here or not. But they do have ways to do different things, using different parts of the law that they haven’t always used.
AMY GOODMAN: And, Michael Waldman, affirmative action. Can you talk about what the court is deciding and how significant it is if they rule against affirmative action? Do colleges, universities have to abide by what they say?
MICHAEL WALDMAN: This, you know, in all likelihood, will be the blockbuster case of the term, and they’re saving it for the last episode of the season, as they sometimes do, or they’re, like, finishing their term papers and saving their work for the last minute.
The Supreme Court is hearing challenges to affirmative action, to the use of race as a factor for university admissions in both public and private universities — two different cases, one from Harvard, one from the University of North Carolina. This is, of course, a really big deal. And most observers do expect them to rule that you cannot use race as a factor in admissions in the way that has been done for years now in higher education. It would be hugely consequential, at a time of massive demographic change and massive pressure on our university systems. The universities around the country, as I understand it, have already anticipated a lot of these rulings and are looking to make changes. You know, one of the questions is: Are there other ways to promote diversity, including on class or location, that will not just replicate the kind of old-school white traditional student bodies of the past, but will enable universities to continue to seek a diverse student body?
You know, there was a great question that Justice Ketanji Brown Jackson asked during the oral argument in this case that shows how disruptive this could be. She said, “Well, there’s two essays applying for college. One is from somebody who says, ‘I want to go to UNC because my grandfather went there, and it will mean a lot to me to go there for that reason.’ The other person writes and says, ‘I want to go to UNC because my grandfather could not go there because of his race, and therefore, it would mean a lot to me to go there.’ Are they really saying that you cannot say that or take that into account in the second essay, but you can, in effect, take white race into account as in the first essay?” You can see how disruptive this would be. And it will affect a lot of things going forward.
JUAN GONZÁLEZ: Michael, I want to turn to your book, The Supermajority: How the Supreme Court Divided America. You raise several important points there. One is the unique role of the Supreme Court in our country versus high courts in other countries. And you also talk about why 2022 was such a seminal or pivotal moment in terms of how the Supreme Court acts. Could you elaborate on both of those?
MICHAEL WALDMAN: Yeah. Well, you’re exactly right. We take for granted that we have this court that is nine unelected people serving for lifetime terms, that has so much power that we sit around every June wondering what rulings are they going to make and what country do we live in as a result. And it has this power only because we the people give it this power. It has developed over time. And it really depends on the public’s faith in the court as at least something like above politics, or at least not a purely political, purely ideological, purely power-driven actor.
In 2022, it was the first full term of the supermajority of six very conservative justices, who you and your viewers are, of course, familiar with how they got installed — six very conservative justices, their first term. And they moved the court — and therefore, the country — hard to the right in three days last June.
First, they did a decision called Bruen, which was by far the most sweeping Second Amendment ruling in the country’s history. It basically said you cannot — when considering the constitutionality of a gun rule, you cannot take public safety today into account. You can only look at, quote, “history and tradition,” meaning: What were the rules back then in the founding era, say?
The next day was Dobbs, which, of course, was the first time the Supreme Court revoked a constitutional fundamental right, recognized by the courts for half a century, by overturning Roe v. Wade and the right to reproductive choice, and did it in a way that puts many, many other privacy rights at risk.
And then, the third big decision got less attention. It was called West Virginia v. EPA, where they began the project, and they’re continuing it strongly, of curbing the power of regulatory agencies to protect the public on issues like the environment, worker safety and other things like that.
They crammed three — they crammed decades of social policy into those three days. And I think, you know, the country is moving in one direction, and the court is veering sharply in another direction. That creates a crisis. Its public trust has collapsed in the past year, according to all public opinion polls. There’s nonstop controversies and scandals. And I think that we’re seeing a real reaction and a real response and a real pushback, which will help shape our politics going forward.
AMY GOODMAN: And, Michael Waldman, we just have about a minute, but I wanted to ask you about these controversies swirling around one Supreme Court justice after another, and whether there will be rules imposed. You’ve got the megadonors, the billionaires, Harlan Crow and Justice Clarence Thomas; you’ve got Paul Singer, the megadonor — both of them having major business before the Supreme Court, Singer with his relationship with Samuel Alito, neither of them disclosing this. So, if they say it really didn’t matter, then why didn’t they disclose it on their forms? What kind of regulation do you see needs to happen? What kind of rules do these Supreme Court justices have to abide by that haven’t been imposed?
MICHAEL WALDMAN: Well, Alito, remember, said, “I can take this travel because he’s my friend,” and then also said, “But I can vote on his cases, because I barely know the guy.” So, you know, it is a real problem. The Supreme Court is the only court in the United States that does not have to follow a binding code of ethics. Nobody is so wise that they should be the judge in their own case. So they, at the very least, minimally, need a binding code of ethics. Congress can pass that, but the court could do it, too.
I think it’s really important also that we look at term limits for Supreme Court justices, an 18-year term, say, with the presidents each getting to make an appointment every two years. These are very popular, across left and right. It’s actually something that people get the idea that nobody should have too much public power for too long. That could be done by constitutional amendment. It could also be done, we think at the Brennan Center, by statute. If you look at the state supreme courts, every one of them but one has either term limits or a retirement age. It helps make the court more accountable, helps drain some of the politics and toxicity out of the nominations. These kinds of reforms are among the things we need to be doing right now to bring the Supreme Court in line with our Constitution and our democracy.
AMY GOODMAN: Michael Waldman, we want to thank you so much for being with us, president and CEO of the Brennan Center for Justice. His new book, The Supermajority: How the Supreme Court Divided America.
Next up, poverty is the fourth leading cause of death in United States. We’ll speak with Bishop William Barber of the Poor People’s Campaign, find out why he just led a march from the Supreme Court. Stay with us.