Jun 28, 2023

SCOTUS rejects independent state legislature theory.

Chief Justice John Roberts joined three liberals in a majority opinion.
Chief Justice John Roberts joined three liberals in a majority opinion. 

Plus, a reader question about abortion polling.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.


The Supreme Court threw out the independent state legislature theory. Plus, a call for help, a reader question about abortion polling, and your weekly Blindspot Report.

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Quick hits.

  1. Yevgeny Prigozhin, the head of the Wagner Group, arrived in Belarus after charges were dropped over the brief rebellion he led. Separately, The New York Times reported that a top Russian general knew about the coup plot in advance. (The report)
  2. Wildfire smoke from Canada is once again blanketing U.S. cities, this time causing the worst air quality in the world across Chicago, Detroit, and Minneapolis. (The smoke)
  3. A Justice Department watchdog concluded that Jeffrey Epstein's death was caused by negligence and misconduct of prison staff. It found no evidence contradicting the FBI's conclusion of a death by suicide. (The findings)
  4. The Small Business Administration inspector general said roughly $200 billion in Covid-19 business relief funds were fraudulent, approximately 17% of the $1.2 trillion distributed by the SBA. (The fraud)
  5. House Speaker Kevin McCarthy backtracked shortly after saying he was unsure whether former President Donald Trump was the strongest candidate to represent Republicans in the 2024 election. (The comments)

Today's topic.

The independent state legislature theory (ISL). In a 6-3 decision on Tuesday, the Supreme Court rejected ISL, the legal theory that embraces the idea that the Constitution gives state legislatures unfettered authority to regulate federal elections, with little to no interference from state courts. Chief Justice John Roberts wrote the majority opinion, while Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.

Reminder: We covered ISL oral arguments in December. The case before the court was Moore v. Harper, in which Republicans who created a gerrymandered congressional map said the state court had violated the Constitution by striking the map down. The original map was expected to produce 10 GOP victories from 14 House districts, despite North Carolina’s electorate being relatively split between Democrats and Republicans. In a 4-3 decision, the state Supreme Court invalidated the map, and ordered a new map drawn by an appointed group of three mapmakers. North Carolina Republicans challenged that map, which was ultimately used in the 2022 election and produced an evenly split congressional delegation. 

Republicans cited the Constitution's Elections Clause to argue that state courts did not have jurisdiction over a legislature's actions in federal elections. Article I's election clause says "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." Article II's election clause says that states should appoint presidential electors for the Electoral College "in such Manner as the Legislature thereof may direct."

Strong supporters of the theory argue that these passages mean elections are the exclusive purview of legislative bodies, and that courts, governors, independent commissions and even election administrators have little or no jurisdiction over the elections. Opponents have argued that this is a misreading of the original text and would break long-standing precedent, all while preventing election oversight from the courts.

What happened? In December, the Supreme Court heard oral arguments, at which point they seemed skeptical of how far the ISL theory could be taken. Yesterday, the court rejected that theory 6-3.

The majority held that the North Carolina Supreme Court did not violate the constitution when it rejected the legislature’s map. Clarence Thomas, who dissented, argued that the case was moot after the North Carolina Supreme Court, which became majority-Republican following the 2022 election, withdrew the initial ruling to redraw the map.

In his majority opinion, Roberts first argued that the case was still live, given that Republican legislators were not asking the Supreme Court to overrule the effect of a previous decision, meaning they still had a stake in the outcome. Roberts then emphasized a long history of state courts invalidating laws that violate state constitutions, and emphasized there was no carve-out to this tradition for laws related to federal elections.

Still, Roberts did suggest that "state courts do not have free rein" to strike down state laws governing elections, and made explicit that federal courts have an obligation to make sure state court interpretations of state law do not violate federal law. In other words: State courts have jurisdiction over the state legislature's rules governing federal elections, but federal courts could intervene on those rulings.

Given the makeup of the Supreme Court, the outcome was far from a foregone conclusion. Fearful that the court could have decided to uphold the ISL, the Biden administration and Democratic North Carolina Attorney General Josh Stein had urged the court to dismiss the case. In practice, the ruling deals a blow to Republican legislatures, who were hoping to keep state courts from overseeing federal elections. While the ruling won't require North Carolina’s Republican legislature to change its map, it could have a lasting impact that will preserve the status quo of judicial oversight of elections.

Today, we're going to take a look at some arguments from the left and right about the ruling, then my take. Quick reminder: You can read our breakdown of the arguments about the ISL here.

What the left is saying.

  • Many on the left support the ruling and applaud the court for shutting down the extreme Independent State Legislature theory.
  • Some suggest that John Roberts is taking back control of the court and reasserting the oversight role of state courts in elections.
  • Others suggest there are some caveats to how good the news is for liberals.

The Washington Post editorial board said the Supreme Court just "warded off a serious threat to democracy."

"Chief Justice John G. Roberts Jr. wrote for a 6-3 majority in Moore v. Harper that 'the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.' This finding might seem obvious, but to proponents of the so-called independent state legislature theory, at issue in this case, it’s anything but," the board said. "The readiness of six justices to call this idea what it is — ahistoric, in clear conflict with precedent and, essentially, baloney — is all the more heartening given two of the majority, Brett M. Kavanaugh and Amy Coney Barrett, were appointed by President Donald Trump."

"Mr. Trump’s attorneys and advocates seized on an extreme interpretation of independent state legislature theory in the wake of his 2020 loss to try to persuade state legislatures to reject certified results that favored Joe Biden, and to suggest that Vice President Mike Pence could accept alternate slates of electors," the board added. Also encouraging was that the court decided to “weigh in on the merits so forcefully when it had an easy out," as North Carolina's Supreme Court had already reversed the decision under challenge.

In Slate, Mark Joseph Stern said John Roberts has "wrested back control" of the Supreme Court.

The ruling "united Roberts, Brett Kavanaugh, and Amy Coney Barrett with the three liberals" and "firmly quashed" the nefarious idea of ISL. "This theory is incredibly dangerous to democracy: It would nullify state courts’ ability to protect voting rights, destroy citizen-led redistricting commissions, and hand federal judges freewheeling authority to meddle in state election law," Stern wrote. "What Republican legislators really want is the freedom to craft gerrymandered congressional districts without judicial intervention."

Since the North Carolina Supreme Court overturned its previous ruling, there was no remaining injury for the court to redress. "So Roberts made one up," Stern said. "Why? He wanted to reach the merits so he could stomp out the independent state legislature theory well in advance of the 2024 election. Which is ultimately good! It is important to get clarity on this issue before 2024. But to accomplish these noble aims, the chief justice had to pretzel the law of mootness."

There is "one important caveat," Ian Millhiser said in Vox.

"The caveat is that Roberts’s opinion does include a vague section which concludes that federal courts may get involved if a state supreme court 'transgress[es] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,'" Millhiser writes. "After spending about two dozen pages laying out the case against the [ISL], Roberts concludes his opinion with a warning that 'state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.'"

"He offers no analysis of just how poorly a state court might need to behave in order to 'exceed the bounds of ordinary judicial review,' but future litigants will no doubt cite this language to justify asking federal courts to overrule state election decisions that they do not like," Millhiser notes. Still, we already know from the 2000 election that the Court will sometimes intervene in extremely close elections, and Moore's language is unlikely to disturb this status quo.

What the right is saying.

  • The right is divided on the ruling, with some arguing it further muddles election law and others saying it is a step toward securing elections.
  • Some argue this is actually a middle of the road ruling that is not the win liberals think it is.
  • Others suggest the ruling is a blow to Trumpism and conspiracies about stolen elections.

The Wall Street Journal editorial board said the court introduced an election "muddle."

"The result isn’t the runaway victory that progressives claim, but it will lead to more election-law controversies," the board said. "Partisan state judges read a ban against political gerrymanders into the penumbra of state law. As a result, Democrats carried three more Congressional seats under a court redrawn map last November than they were predicted to under the Legislature’s." GOP lawmakers argued that the Elections Clause prevented state courts from striking down a legislature’s maps or voting laws affecting federal elections.

"Chief Justice John Roberts rebuffs this reading of the Elections Clause with a middle of the road, or muddle of the road, decision," the board said. "On the one hand, he says state legislatures are subject to state judicial review under the state constitution when they write election law. But he also stresses that ‘state courts do not have free rein’” and “‘this Court has an obligation to ensure that state court interpretations of state law do not evade federal law.’” So state court election rulings will be subject to U.S. Supreme Court review. Yet the majority declined to adopt a standard for reviewing such state court decisions.

In his newsletter, Ilya Shapiro said this was actually a "middle path" ruling.

The Supreme Court "essentially told state courts not to go crazy in interpreting state laws regulating federal elections, because the U.S. Constitution’s Election Clause provides for federal judicial review of such interpretations," Shapiro wrote. "In sum, although this ruling will be hailed as a loss for conservatives, it’s very much a middle-of-the-road decision which says that state courts still have a role to play in interpreting state constitutional provisions—but they can go too far and there’s a federal-court backstop. In Chief Justice Roberts’s words, the Supreme Court 'has an obligation to ensure that state court interpretations of state law do not evade federal law.'

"The ruling thus reinforces the view that federal election law is ultimately policed by federal courts, so 'state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,'" he wrote. "All that is correct," but the court frustratingly declined to adopt a standard for determining when state courts cross the line. "In other words, anyone looking for guidance in evaluating whether what a state supreme court does ahead of the 2024 election is constitutionally kosher will have to wait until the justices are forced to make that hard balls-and-strikes call that the chief justice referenced at his confirmation hearings."

In The New York Times, David French said the Supreme Court just helped save American democracy from Trumpism.

"It’s important to remember that the G.O.P.’s attack on American democracy had two aspects: a conspiracy theory and a coup theory. On Tuesday, the Supreme Court dealt a blow to both," French wrote. "The first, the conspiracy theory, was that the election was fundamentally flawed; the second, the coup theory, was that the Constitution provided a remedy that would enable Donald Trump to remain in office." The implications of the court's ruling "are profound." The court's decision "strips away the foundation of G.O.P. arguments that the election was legally problematic because of state court interventions. Such interventions did not inherently violate the federal Constitution, and the state legislatures did not have extraordinary constitutional autonomy to independently set election rules."

The ruling also "eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review. State legislatures will still be accountable for following both federal and state constitutional law. In other words, the conventional checks and balances of American law will still apply," French said.

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • This is a great outcome.
  • Roberts' opinion made it clear how fringe this theory really was.
  • This Supreme Court is not nearly as predictable as people think.

This is basically what I expected, and it is a very good outcome.

In December, I wrote that I felt more strongly about this than any other Supreme Court case we've ever covered. And I wrote then what I believe now: The independent state legislature theory is bonkers. It isn't just divorced from the historical record (as Roberts noted in his opinion, state courts in Rhode Island and North Carolina were striking down laws violating their own state constitutions in the 1780s, before the federal Constitution itself had even been ratified), it is also an intentional redefinition of language that has been clear to every generation of lawmakers in our history until this one.

The basic argument ISL proponents are making is that in the 1700s, "the legislature" did not mean what it means now. ISL believers want to define “the legislature” as the elected body of men and women who make up the House and Senate. But the legislature, as the Supreme Court has explained before, is the power that makes laws. And that power is shared by the legislative body, the executive, and the judiciary (courts). This is how the term has been understood for our nation's entire history, until North Carolina lawmakers adopted a rather fringe theory and tried to make it mainstream before the Supreme Court. Even taking their interpretation of “legislature” at face value, the ISL proponents ignore the fact that the legislature has long invited judicial review of its actions

Some of the ISL argument was also based on a fake historical document. Again, we explained this all in more depth in December.

I’ll take a brief victory lap on this, because my writing then about how this case would go also appears prescient:

The good news is that Moore’s challenge is likely to fail. While I find it deeply concerning that there are conservative justices on this court even considering this argument, there is plenty of dissent. Leaders at the conservative Federalist Society have lambasted the idea. Benjamin Ginsberg, a longtime Republican idol and one of the top Republican election lawyers in the country, said the theory would “create untenable legal uncertainty around elections." Judge Luttig, cited above, is another conservative legal giant who took the time to deconstruct the truly stunning bad-faith arguments behind this case... And, even better, the Court itself looks unlikely to embrace any broad version of the independent state legislature theory.

That said, I don't think all aspects of this outcome are ethically unambiguous. As commentators on the left and right both put it, Roberts twisted himself into a pretzel in order to dodge the mootness of this case. I'm not really sure how to reconcile the logic of this case’s merits with the logic he used to hear the case, except to say that it is a reminder of how malleable the law is. Still, that justification for ruling on the merits is welcome, because I believe the outcome of this case is unambiguously good, especially as it relates to creating more clarity in the upcoming 2024 elections. But I'm very conscious of the fact I'd feel quite differently if the ruling had gone the other way.

What's ironic, and I think underscores this court’s unpredictability, is that a lot of the people who wanted to see ISL get crushed were hoping the case would get dismissed, while the folks who thought they had some allies on the high court wanted to see a ruling come down.

Again: This might be a middle-of-the-road outcome, and it might even be something that simply preserves the status quo. But in this case, that preservation is a big win. Because the alternative could have been complete chaos.

Your questions, answered.

My understanding is that by almost all measurements the general American public wants abortion to be legal in most/all cases (Please correct me if I'm wrong). So then why are there so many running Republicans in this election cycle with an anti-abortion platform? Specifically, Haley, Pence, DeSantis, and Scott. Is this an effort to distinguish themselves from Trump who seems at least quiet about it?

— Miriya from Dayton, Ohio

Tangle: I think we may be seeing a mirage regarding abortion opinion in the news media right now, for two reasons. First of all, you're right, Trump isn't talking about abortions. Not because he's avoiding it, just because he's talking about other things — like the 2020 election and his indictment. And if we're honest, I don't see any other Republican on the campaign trail spending much time on abortion. In fact, Axios just had a whole story about Republicans avoiding abortion on the campaign trail.

Second, I think the way the media is framing abortion polling is obscuring the fact that restricting abortion is still a winning stance in the Republican party. I wanted to address this question specifically to talk about how.

There is a gap between what the headlines on abortion opinion are implying, and what the partisan polling data is saying. Headline from Pew: Six-in-ten Americans say abortion should be legal in all or most cases. Partisan data from Pew: 60% of Republican/lean-Republican respondents say it should be illegal in most cases, including 73% of self-identified conservatives. Headline, from NPR: Americans want abortion restrictions, but not as far as red states are going. Partisan data from NPR: 88% of Democrats would support a law that gives safe haven to people seeking out-of-state abortions, but 42% of Republicans would not. Headline, from Marist: Americans staunch in opposition to overturning Roe v. Wade. Partisan data, from Marist: 65% of Republicans say they think of themselves as "opposing abortion rights."

I'm not saying that Republican candidates are going to want to make abortion a central plank in their platforms. Clearly, there is broad support for general abortion rights among independents, and any candidate hoping to win over that group won't want to make it a major focus.

Ultimately, yes, most Democrats and independents support more access to abortions — but it remains true that most Republicans do not. Even more, Americans as a whole care a lot about when a fetus is aborted when considering an abortion’s legality. This will just mean that in the post-Roe era, there will be room for debate between Republican candidates on where they draw the line: Haley has called a federal ban "unrealistic," while Tim Scott has called South Carolina's six-week ban "good news."

Still, I don't think any of this means we're going to see Republican candidates become more permissive about abortion. 

Blindspot report.

Once a week, we present the Blindspot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing.

The right missed a story about a city in Delaware that is preparing to give businesses in the town one vote in local elections.

The left missed a story about an undercover video from James O'Keefe allegedly showing a BlackRock recruiter discussing how $10,000 can buy a U.S. senator and the Ukraine war is good for business.


  • 35%. According to a Quinnipiac poll, the percentage of Americans who said they approve of the job the Supreme Court is doing, the lowest approval rating in 20 years.
  • 55%. According to a Quinnipiac poll, the percentage of Americans who said they disapprove of the job the Supreme Court is doing.
  • 30%. The percentage of the United States currently under heat warnings and watches.
  • 228. The Air Quality Index (AQI) of Chicago on Tuesday, giving it the worst air quality in the world.
  • 8 of 20. The number of the top automakers who have said they are removing AM radio receivers from their new vehicles.

The extras.

  • One year ago today we published a piece about the Supreme Court's gun control ruling.
  • The most clicked link in yesterday's newsletter was the New York Times article on the ISL ruling.
  • I may be biased... We asked Tangle readers if they thought John Durham's report showed evidence of wrongdoing in the FBI, and 67% said "It showed evidence of bias by the FBI, but not criminal behavior." 22% said it showed evidence of criminal behavior, 6% said it showed no evidence of bias or criminal behavior, and 5% were unsure or had no opinion.
  • Nothing to do with politics: This trick cow.
  • Take the poll. You know where I stand on the independent state legislature theory, but what do you think? Let us know!

Have a nice day.

Thanks in large part to an international human effort, there are more trees on Earth today than there were 35 years ago. Worldwide tree cover has grown by 2.24 million square kilometers in the last 35 years — an area the size of Texas and Alaska combined — according to an analysis of satellite data by researchers from the University of Maryland. The overall global trend has been driven by agricultural abandonment in parts of Europe, Asia, and North America; rising temperatures allowing forests to grow closer to the north and south poles; and a massive tree-planting program in China. Researchers concluded that 60 percent of the increase they detected during the study period was associated with human activity. Good Good Good has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.