![]() Speaker A: In some ways, the case went away. Speaker A: They think that the case should have been dismissed as moot because the North Carolina Supreme Court flipped in the intervening period. ![]() Speaker A: The dissenters today are Justices Alito, Gorsuch, and Thomas. Speaker A: I think Justices Alito and Gorsuch and Thomas had at least looked as though they were in favor of some version of it, and Justice Kavanaugh again had indicated he was at least open to thinking about it. Speaker A: You mentioned that members of the court had evinced, historically at least, some interest in the independent state legislature theory. Speaker B: And that’s what the Supreme Court in Chief Justice Roberts opinion validated today. Speaker B: And that was an uninterrupted practice from before the Constitution’s ratification until today, frankly. Speaker B: Specifically, that long before the founding and the ratification of the Constitution, state legislatures had had, under their own Constitutions, played a very active role in the legislature’s promulgation of the rules governing both federal and state elections. Speaker B: But when I studied that at great length, it was crystal clear to me, without any question whatsoever that the history compelled today’s conclusion. Speaker B: And thinking about the research from the entire body of research that had been done by everyone else, I didn’t do the original research, in other words. Speaker B: Then if we turn to the history side, I did all of the research myself. ![]() Speaker B: I wanted to stake out what I was confident at that point was the law on the textual side. Speaker B: And that’s why I ended up writing the pieces in the Atlantic before I agreed to be cocounsel for common cause with Neil Cadill. Speaker B: I knew that it was categorically wrong and that, frankly, both sides were categorically wrong. Speaker B: But the text tells us that it’s the entire legislative process, lawmaking process that’s empowered to make the decisions that is, that judicial review was part and parcel of the legislative function that was enacting the laws governing redistricting. Speaker B: For their part, the respondents, though, walking right into the textual argument themselves, argued that yes, the text actually decides the case. Speaker B: So for instance, the petitioners argued that the text, because it empowered the state legislatures to prescribe the rules, argued that therefore the state courts could not second guess in any way that decision. Speaker B: As to the text, when I came into the case, frankly, all parties, all sides of the case were arguing the case from the text. Speaker B: Yes, to a fairly well dolly, let’s take the textual point first and then the history point second. Speaker A: And it does feel like this project of textualism, of original, public meaning of originalism also gets a boost today because this idea that you can import your own views of text and your own views of history into the discourse kind of gets slapped back today, right? Speaker A: And in a sense, it feels as though what the Chief Justice Resoundingly does today is re up the idea that if we’re going to do text and we’re going to do history, then let’s get those things right. Speaker A: But I wondered if one of the things that you have been saying, I think from the jump judge is that the independent state legislature had I think your quote was literally no support in the text of the Constitution that the folks who were doing it were also doing bad history. Speaker A: And as you note, they’re sort of intricately connected. Speaker A: I’m so glad that you’re doing this work of lashing what you’re describing as this very political case in North Carolina to what was going on around the attempts to set aside the 2020 election because I think it’s easy to see those as happening fully independent of one another. Speaker B: And it chose to do it in Moore versus Harper, which arises not under the electors clause, but rather the elections clause of the Constitution. Speaker B: So there was never any question in my mind or those who follow the court closely, that having refused review right before the 2020 election that the Supreme Court would have to decide the independent state legislature issue soon.
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