Question for the lawbros. If we found some sort of perfectly impartial and logical lawbot and asked it to rule on these issues wouldn’t it rule that the constitution does in fact say that state legislatures can do whatever the fuck they want wrt electoral votes? In fact, I’m old enough to remember the left deciding to use this feature with that whole National Popular Vote Interstate Compact thing (which has no chance, but still).
It sounds to me that what we’re rooting for is for the SC to calvinball it the other way. As hypocritical as that may be, I’m good with that given that we’ve been on the bad side of calvinball too many times. But I just want to be clear on what we’re rooting for.
Not a lawbro but yeah that’s basically the case—from a pure textual perspective the doctrine of independent state legislature theory is frighteningly well-supported.
Your understanding is flawed though. We don’t think the courts should adhere obsessively to the literal written text of the law. That’s what conservatives say they think when they’re trying to dismantle Obamacare.
We think courts should be empowered to make reasonable judgements to support the intentions of the laws, and generally strive for just outcomes that actually reflect lofty principles like equal justice before the law.
The Calvinball comes up because conservatives are textualists when they’re trying to nit up laws to be narrowly defined, or originalists when they’re trying to define rights, or they suddenly legislate based on feels when it comes to things like religious freedom.
Maybe I’m not understanding it correctly, but it seems like it does to me. Instead of a state legislature awarding electoral votes based on their state elections they are awarding it based on something else entirely (national popular vote). It definitely feels more wholesome than the legislature just saying “fuck you, the electors are going to Trump”, but the underlying logic seems pretty much the same to me.
Lot to unpack here. I actually think that judges should adhere to the literal written text. What I call calvinball is when they blatantly misread literal written text or, as you say, they rule by “feels” instead.
Ordinarily, I’d also be opposed to the liberal wing deviating from the literal written text. But one side taking the job seriously and the other side calvinballing is a recipe for disaster, so I’m OK with the liberals deviating. I don’t like it, but I see it as a necessary evil with the system as currently constructed.
I’m actually completely fine with following the written text of the law to the letter if it means the US is forced to abide by its treaties with indigenous nations, which means the end of the country as we know it.
Sweet Summer Child me if you wish, but I think SCOTUS will vote to uphold the authority of SCONC to constrain the legislature. I think most of SCOTUS - everyone not named Alito, Thomas and Gorsuch - are institutionalists and pragmatists at the end of the day and don’t want to unleash the chaos of ISL. It wouldn’t surprise me if Kavanaugh voted to hear the case for the express purpose of throwing it in the trash after arguments. It’s good PR to do that occasionally and they have really been putting the pedal to the metal vis a vis legislating from the bench of late. If they take this and vote it down the lib lawbros will be back to saying “ah see, we knew all along this was a functioning institution, look at this impartial voting by Kavanaugh and Barrett”.
This. And the rwnjs are going to have an absolute field day with this. “Dem County commissioner murders investigative journalist” will be read as “dems cheated to win the election and murdered the guy who was going to expose them” without any further information needed. Doesn’t matter if that’s actually what happened or not, that’s a lock to be the takeaway from this story for half the country.
If you think about it, it’s pretty suspicious that there is no evidence at all that the investigative journalist had proof that Dems stole the election. I mean, that’s EXACTLY what it would look like if they hid all the evidence! DO YOUR OWN RESEARCH!