Today, a squabble within the Federalist Society became public thanks to veteran SCOTUS watcher, @NinaTotenberg. It would be tempting to dismiss this fight as inconsequential. Don't. 1/
@NinaTotenberg On December 7, SCOTUS will hear oral argument in Moore v. Harper, a case poised to make the independent state legislature doctrine the law of the land. Why should you care about some legal doctrine? 2/
Because it's really an interpretation of constitutional text that would deprive state courts of any role with respect to the conduct of federal elections & give "state legislatures exclusive and near-absolute power to regulate federal elections." 3/
brennancenter.org/our-work/resea…
That brings me back to @NinaTotenberg & @FedSoc, the most prominent conservative legal group in the U.S. whose role in selecting federal judges cannot be overstated. As FedSoc celebrates its 40th anniversary this weekend, Nina interviewed its co-founder, Steven Calabresi. 4/
@NinaTotenberg @FedSoc Calabresi, a law professor at Northwestern, recently filed an amicus brief in Moore v. Harper with two other professors who pride themselves on "principled" originalism, the theory that constitutional text means what it meant at the founding and/or its ratification. 5/
@NinaTotenberg @FedSoc Based on their review of historical evidence, Calabresi et al conclude the founders recognized state supreme courts "as specially privileged interpreters of state laws and constitutions," just like SCOTUS is uniquely situated to review federal law. 6/
In other words, Calabresi doesn't think the independent state legislature doctrine comports with originalism--and therefore, he says the North Carolina legislators bringing the case should lose. 7/
supremecourt.gov/DocketPDF/21/2…
And that was just unacceptable to the FedSoc board of directors, which apparently wants the opposite result: state legislatures having full control over elections, from gerrymandering to "voter integrity" laws to even the ultimate results. 8/
So they told Calabresi, as the organization celebrates the 40th anniversary of the group he started, to stop identifying himself as a co-founder or a co-chairman. That's not only "crazy" and "ridiculous," as Nina noted, but a scary indicator of what's ahead this term. FIN
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