Moore Thoughts on the Court and the System

It seems fairly clear that a majority of the Court intends to reject the Eastman version of the “independent state legislature theory” in favor of a standard which permits the federal courts to overturn only outrageously wrong state court decisions at the request of the legislature. That should eliminate at least some of the danger of a soft legislative coup after presidential elections, which is a good thing.

My concern is that the new standard (I will call it the “due process standard”) will be nebulous enough to permit the Court to authorize extreme gerrymanders in red states and overturn them in blue states. It will look like the completely contrived “major questions” doctrine in practice: a license for the Court to help Republicans whenever it sees fit, which experience tells us will be almost always.

That’s a different danger to the system, but a serious one, nonetheless.