Thread by @SethAbramson

(🧵) A thread on Moore v. Harper, by an attorney.

You’ll want to have done some background reading on the case and its import before reading this. I’m a lawyer and former professor—so, theoretically well-equipped to discuss this case with a lay audience—but it’s a confusing one.

1/ I will try to make this thread as simple as I can.

2/ The best jurists try to avoid deciding legal questions they don’t *have* to decide. They act this way because the law (whatever anyone tells you) is at its core conservative, by which we simply mean that it seeks to stand on existing precedent (“stare decisis”) when possible.

3/ Moore v. Harper is a case that technically the Supreme Court could’ve declined to deal with at all. Why? Because it was reheard by a newly elected North Carolina Supreme Court (a GOP one) after going up to SCOTUS while a Democratic North Carolina Supreme Court was in power.

4/ The newly elected North Carolina Supreme Court issued a decision reversing the holding of its Democratic-led predecessor as part of a partisan effort to allow NC Republicans to gerrymander themselves a permanent legislative majority (effectively ending real democracy in NC).

5/ We could go into the state-level rigamarole—a good summary is that it was a power play by judicial and legislative branch NC Republicans to make the state an autocratic government entity—but the upshot was that the issue that originally went to SCOTUS arguably became moot.

6/ It was a great chance for the Supreme Court to kick the can down the road and *not* resolve the question of whether ISL (Independent State Legislature theory) is a real thing that the Supreme Court will recognize and honor. But the Court decided not to kick the can, because...

7/ ...Independent State Legislature theory, a fringe theory adopted only by far-right activists, is basically what caused the deadly rebellion against the United States government on January 6, 2021.

And it could easily cause bloodshed again—in January of 2025. Here is why:

8/ ISL says that state legislatures have absolute power over elections in their states, meaning they can make decisions regarding elections no one—literally no one anywhere, court or otherwise, state or federal—can review. For instance, they can ignore their state’s popular vote.

9/ One reason state Republicans are trying to gerrymander states to the point that your vote doesn’t matter—because they’ll have a veto-proof majority in the legislature no matter what, making even a governor irrelevant—is because if they succeed in this they can pick presidents.

10/ If that sounds crazy to you—even like something that could launch a Second Civil War—yes, you’re right. It is. It could. Americans wouldn’t stand for having a GOP legislature in a state that goes blue for POTUS award all that state’s electoral college votes to the Republican.

11/ But MAGA is an openly fascist enterprise—if it needs to call out the National Guard to shoot protesters in the street en masse so a GOP legislature can award all a state’s electoral votes to Donald Trump despite him losing that state by 500,000 popular votes, it *will* do so.

12/ So what does this have to do with Moore v. Harper? Everything.

The Court had a chance to deem it moot but it also knows that ISL is what animated the insurrectionists in 2021 and is what would animate them in 2025. Trumpists want to steal the 2024 vote for Trump if he loses.

13/ So in the decision today, 3 justices voted to DISMISS the case as moot, leaving open ISL as a theory insurrectionists could use to justify election theft, mass violence, and even a nationwide armed rebellion in 2025.

Those ¯\_(ツ)_/¯ justices were THOMAS, GORSUCH, and ALITO.

14/ ALITO had a different view than THOMAS and GORSUCH, however.

ALITO wanted the case dismissed, and did not want to talk about ISL at all. He saw the path of least resistance here and decided to take it.

THOMAS saw things quite differently and persuaded GORSUCH to his view.

15/ THOMAS—whose wife Ginni advocates ISL; pushed it publicly/privately as a Trump adviser in 2020; and *appears* to have corresponded with her/her husband’s pal John Eastman (a Trump lawyer a federal judge found more likely than not criminally conspired with Trump) about ISL—...

16/ ...wanted *his* opinion in Moore v. Harper to make clear that, while he could not formally decide the issue because (as he had already said in the first part of his dissent) Moore v. Harper was a moot case, if he *was* deciding the issue he would have accepted ISL as correct.

17/ Now, THOMAS backers—for that matter GORSUCH backers, as THOMAS persuaded the sometimes-Rand-Paul-levels-of-batshit-libertarian-crazy GORSUCH to his tack here—will howl at me saying this, but they also know that what I’m saying is right. THOMAS wanted to send a message on ISL.

18/ The message he wanted to send was that *his wife has the right of the matter* when it comes to ISL. And so does Trump. So do Trump’s criminal co-conspirators. And so do the January 6 defendants. And so do insurrectionist state GOP legislators. So do all MAGA insurrectionists.

19/ The intemperate THOMAS can chastise his peers in the majority—ROBERTS, CONEY BARRETT, KAVANAUGH, SOTOMAYOR, KAGAN, and BROWN JACKSON—for deciding a case that was technically moot, and he in theory (only in theory, as it is arguable) might have a *kind* of high ground on that.

20/ What he cannot do is chastise them—which he did, at length—and *then* issue a massive advisory opinion on ISL, which he also (hypocritically, given that he called the case moot and said the litigants were not entitled to an advisory opinion from SCOTUS on a moot case) did do.

21/ THE MAJORITY had this implicit argument for issuing an opinion: America may collapse if we don’t.

THOMAS had the following implicit argument for issuing his opinion: my wife will kill me if I don’t, as I’m giving her legal cover for potential criminal liability by doing it.

22/ If any member of the Supreme Court implicitly endorses ISL—and THOMAS and GORSUCH have, implicitly, done so today—it makes those who were pushing ISL (at the time, in 2000, widely said to be so outside the mainstream all 9 justices would reject it) seem less insurrectionisty.

23/ The explicit reason THE MAJORITY gave for issuing an opinion was a technically sound but substantively meh justification—the sort of explanation for a ruling a judge gives that can be applauded by those who like it and decried by those who don’t with equal license and fervor.

24/ The explicit reason THOMAS gave for issuing an opinion on a case he’d held moot—clearly a hypocrisy even the spectacularly (I dare say historically) hypocritical ALITO wouldn’t join him in—was, well, nothing, really. He just had to say how much he disagreed with THE MAJORITY.

25/ Sure, THOMAS—and by signing on to his dissent, GORSUCH—opined that THE MAJORITY holding was egregiously dumb and dangerous and mercurial, but honestly this has become par for the course for dissents in this century. Ruling on a case you’ve called moot is pretty extraordinary.

26/ Where things get tricky is explaining the reasoning of THE MAJORITY vs. THOMAS/GORSUCH. You first need to understand that while solid opinions are all different, every egregiously wrong and profoundly disingenuous dissent has one thing in common: it’s damnably hard to follow.

27/ What THOMAS seems to be saying (with GORSUCH) in his dissent is that while Supreme Court precedent confirms that a state court can oversee a state legislature when it comes to *procedural* aspects of running elections, it can’t oversee its legislature on *substantive* issues.

28/ If that sounds—on it face—batshit crazy to you, well, it should.

Because it is.

Let me explain *why*, though.

29/ There is a key principle in constitutional and statutory interpretation—in other words, in jurisprudence at both the state and federal levels—that says a judge must *never* interpret a given constitutional clause or statutory provision in a way that frames it as a "nonsense."

30/ This is actually a more *technical*—if still only implicit—form of self-regulation than you may think.

The reason for this is that judges must often look at the "intent" of the Founders (for the US Constitution) or legislators (for statutes) in interpreting what things mean.

31/ If a judge interprets a clause or provision in a way that renders it a "nonsense," it means that judge is saying—in effect, if not literally—that its author(s) were simply crazy. And that conclusion is *always* going to be seen as a judge sidestepping their interpretive role.

32/ Here, THOMAS is saying a state court can review how a legislature handles an election’s *procedural details*.

Oh, that’s nice—that’s quaint.

But then THOMAS says the legislature can just *pick an election winner randomly* and the state’s Supreme Court has to go f*ck itself.

33/ See the problem?

34/ It’s the classic case of the exception swallowing the rule. The supposed authority of a state court to review state election procedures is rendered *moot for the rest of history* if the state legislature can simply counter by voiding the whole election and picking the winner.

35/ Only a literal insane person would structure judicial authority that way, and we are not—as lawyers—entitled to presume the Founders or their state-level constitutional-convention counterparts were stark, raving mad.

But that is what THOMAS and GORSUCH do here, and brazenly.

36/ In contrast, what THE MAJORITY does—3 staunch conservatives, 3 progressives—is say *of course* there aren’t many (if any) things a state legislature can do that are permanently/comprehensively nonjusticiable (ineligible for court review) as that would collapse U.S. democracy.

37/ Indeed, ISL is so embarrassingly inane that THE MAJORITY opens its decision by citing MARBURY V. MADISON—the equivalent of a parent disciplining a child by citing THE LAWS OF THE KNOWN UNIVERSE as sufficient explanation for their punishment.

We rarely see this sort of thing.

38/ In paraphrase, THE MAJORITY says state courts can review state legislative actions to ensure they conform to the state’s constitution—a point so obvious it’s demeaning to the Supreme Court that it even had to be made—and that federal courts can supervise state courts in this.

39/ In supervising state courts on this—admittedly an odd matter, as it’s a federal court determining if a state court applied state law right—the standard (in paraphrase) is if the state court is engaged in a normal exercise of oversight. This is the sort of loose standard...

40/ ...we have *all over the law*, though lawyers like to deny it when it suits them.

So of course that’s what THOMAS does.

He says—wait for it—that this sort of federal oversight of state-court oversight of state legislatures will cause *such chaos* the alternative is better.

41/ To repeat: the alternative is fire, brimstone, mayhem, riot, rebellion, tyranny, blood in the gutters, people holed up in their houses with kitchen knives, the moon exploding, cats and dogs living together, a *sixth* reboot of Beverly Hills 90210...

You get the point.

42/ So it’s not hard to see how THE MAJORITY is thinking:

a) a loophole lets us hear this case;
b) if we don’t hear this case, America could die;
c) the case isn’t a close call; so
d) we—a consortium of *very* different-minded jurists—will do the right thing and decide the case.

43/ But it’s *hard as hell* to see what THOMAS is thinking. Still, I’ll give it a go (speculation only):

a) my wife is now under investigation for conspiring with our pal John and her boss Donald to use ISL to steal a U.S. election;
b) I don’t want Ginni to go to federal prison;

44/

c) there’s no danger the Democratic Party will use ISL to steal an election and/or destroy America, because it doesn’t believe in ISL and isn’t a fascist entity; so
d) I can safely send a signal to insurrectionists that they at least have *intellectual* cover in using ISL...

45/

...to steal elections and end U.S. democracy, knowing I’ll be in the minority and therefore have plausible deniability (i.e., my view isn’t the law of the land and therefore can’t be said to be inciting Sedition); and
e) I hate the world and doing all this makes me smile.

46/ Dissents don’t get widely reported on, so the fact that this one is incoherent is immaterial. The important thing is that Ginni Thomas gets it, the insurrectionists get it, Trump gets it, MAGAs get it, the GOP gets it: there are 2 of the 5 votes needed to kill our democracy.

47/ And if you want my guess? There are 3. ALITO was just too smart to tip his hand.

So the question for THOMAS is a) what kind of pressure can be applied to CONEY BARRETT or KAVANAUGH to sway them to the insurrectionist view, b) can we get one more insurrectionist on the court?

48/ Fortunately, THOMAS is married to the person who has more say than anyone on these issues (and his/her best friend is the man who ranks second in this regard, LEONARD LEO).

One of CONEY BARRETT or KAVANAUGH must be flipped; Trump must win in '24; he must get another Justice.

49/ So the Moore v. Harper opinion is *interesting* less because it was simply sane and for now has maybe saved America from *one* kind of total, near-instant collapse—though it was and did—and more because it gives us a critical snapshot of how far along the end of democracy is.

50/ For investigators, the question is this: why did Trump’s legal team, led by one of the closest friends of the Thomases—which friend Ginni Thomas was in touch with pre-January 6—seem to know they had a chance to sway Thomas (which we now know they did)? politico.com/news/2022/11/0…

PS/ Never forget that when, mere hours before January 6, Mike Pence’s lawyer said to John Eastman—longtime friend of the Thomases—that ISL would lose 9-0 at SCOTUS, Eastman replied, "I think maybe you’d lose only 7-2."

The Court was technically 7-2 on ISL today. Worth a thought.

PS2/ Put aside that Eastman guessed (or knew) correctly: more importantly, he’s saying a 7-2 SCOTUS opinion was *enough* to justify acts preliminary to ISL—it turns out, crimes—because it made ISL theory legally colorable.

And that is what *his friend* Clarence Thomas did today.