The “Bounds” of Moore: Pluralism and State Judicial Review

abstract. In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democracy.

Introduction

In 1977, Justice William J. Brennan, Jr. famously argued that state constitutions, no less than the Federal Constitution, are “a font of individual liberties,” with protections “often extending beyond those required by the Supreme Court’s interpretation of federal law.”1 Without recognizing “the independent protective force of state law,” Brennan cautioned, “the full realization of our liberties cannot be guaranteed.”2

Justice Brennan wrote these words at a pivotal moment in U.S. Supreme Court history. In the years immediately preceding his famous piece, the Court’s majority, according to Brennan, had retreated from meaningful enforcement of the constitutional guarantees of equality and liberty, as well as various provisions of the Bill of Rights.3 As evidence of that retreat, Brennan pointed to cases allowing discrimination against pregnant workers;4 permitting the indigent to be denied access to judicial fora;5 and limiting the force of the Constitution’s warrant requirement, prohibition on compelled self-incrimination, and right to counsel.6 Many of the cases “limit[ing] the protective role of the federal judiciary”7 did so on the premise that state courts “c[ould] be trusted to safeguard individual rights.”8 To Brennan, this premise constituted—and he amplified—“a clear call to state courts to step into the breach.”9

Justice Brennan’s call came to be known as the “new judicial federalism,”10 and it ushered in an era of serious attention to state constitutions as sources of rights, separate and independent from the Federal Constitution.11 In more recent years, attention has increasingly turned to the structural choices made by state electorates and in state constitutions, in addition to the rights guaranteed by state constitutions.12

But a theory considered by the U.S. Supreme Court last Term—the so-called “independent state legislature theory” (ISLT)—could call into question the power of state courts and state constitutions to protect rights above and beyond the rights secured by federal law. It could throw into doubt states’ power to structure their affairs in ways that diverge from the federal system. And it could do all of that in an arena that involves the most important state choices regarding both rights and structure—voting and democracy.

The ISLT, in brief, maintains that the Federal Constitution gives to state legislatures, and withholds from other entities, the power to regulate Federal elections.13 Proponents of the theory suggest that it follows from two provisions of the Federal Constitution: Article I’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,”14and Article II’s Presidential Electors Clause, which provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”15

In seeking to assign state legislatures unique powers flowing from the Federal Constitution, the ISLT threatens to constrain state judicial decision-making in ways that would make state courts, state constitutions, and state law both less rights-protective and less democratic. Under the guise of the ISLT, the Court could effectively require state courts to use the U.S. Supreme Court’s preferred method of interpreting legal texts, or at least the method of interpretation the Court says that it prefers—textualism. Self-proclaimed textualist Justices could insist that only textualist readings of state law and perhaps only their preferred textualist interpretations of state law constitute “fair readings” of state law for purposes of the Elections and Electors Clauses. They could use that notion to invalidate state rulings that expand voting rights. This variation on the ISLT could empower federal courts to prevent state courts from recognizing new voting-rights protections in state constitutions, from giving effect to existing democracy-promoting mechanisms in state constitutions, and from responding to democratic processes.

Last Term, the Supreme Court declined to embrace a maximalist version of the ISLT in the much-anticipated case Moore v. Harper.16 But the Court’s failure to clearly and decisively repudiate the ISLT in Moore means that the ISLT may continue to pose a threat to meaningful rights protection by state courts, and more broadly to state-level democracy.

In this Essay, we identify the gaps left open in the Court’s opinion in Moore. In Part I, we suggest that language in both the majority opinion and Justice Kavanaugh’s concurrence may leave open the possibility that the Court could still deploy the ISLT to invalidate democracy-enhancing decisions by state courts or other state actors. In Part II, we show that such use of the ISLT would be impossible to reconcile with the Moore majority’s history-and-tradition approach to evaluating proposed constitutional doctrine, particularly the Moore majority’s focus on state interpretive practices close in time to ratification, which were decidedly nontextualist in method. Finally, in Parts III and IV, we show that this twist on the ISLT would be fundamentally incompatible with core precepts of federalism, which grants states considerable leeway in both structuring their institutions and adopting different modes of interpretation, and with sensible accounts of democracy.

I. moore v. harper

Moore involved an audacious request by a group of North Carolina legislators: that the U.S. Supreme Court throw out a decision of the North Carolina Supreme Court that had invalidated the state’s legislative maps under the North Carolina Constitution.17 On the state lawmakers’ account, the state high court lacked the authority to sit in judgment on the state’s congressional map, because under the Federal Constitution, only state legislatures may regulate federal elections.18

The Supreme Court’s opinion in Moore rejected the legislators’ request, disavowing a strong form of the ISLT and holding that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”19 In other words, the Court explained, state courts, no less than federal courts, possess the power of judicial review, which includes the ability to review state laws governing federal elections to determine whether those laws are consistent with a state’s constitution.

But Moore conspicuously declined to address when and under what circumstances federal courts could review how state interpreters, including state courts, interpreted state constitutional and statutory law governing federal elections. That was no small omission. Indeed, it had been a key part of the debate in Bush v. Gore,20as well as its predecessor Bush v. Palm Beach County Canvassing Board.21 In Bush v. Gore, the U.S. Supreme Court reversed a Florida Supreme Court decision that concluded that a manual recount was required by Florida state law. Although the basis for the Supreme Court’s reversal was the Federal Constitution’s Equal Protection Clause, Chief Justice Rehnquist wrote separately to assert that the Florida Supreme Court had so badly warped the meaning of state law that the state court had violated the Federal Constitution’s Electors Clause. According to Rehnquist, the Electors Clause required the state legislature, rather than state courts, to determine the rules according to which presidential electors are awarded.22 That theory provoked several dissents, with Justices Souter, Stevens, Ginsburg, and Breyer rejecting the Rehnquist view that the Florida Supreme Court had so badly erred in its interpretation of state law that the Supreme Court could set that interpretation aside under the Electors Clause.23

The Moore Court alluded to these debates but declined to take any position on them, explaining that “[w]e do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.”24 Instead, the Court said only that when reviewing state laws governing federal elections, “state courts may not transgress the ordinary bounds of judicial review.”25

Justice Kavanaugh issued a separate concurrence in which he explicitly adopted Chief Justice Rehnquist’s standard from Bush v. Gore.26 This position, which we term the “Rehnquist-Kavanaugh position,” does concede that state courts, like federal courts, possess the power of judicial review. But Kavanaugh’s concurrence cautioned that “‘state courts do not have free rein’ in conducting that review,”27 and further explained that in cases involving federal elections, “a state court’s interpretation of state law . . . is subject to federal court review.”28 It is true that federal courts have long asserted a power to conduct due-process review of truly outlier state-court decisions.29 But the Kavanaugh concurrence, like Rehnquist’s before it, seemed to assert a broader federal judicial power in the context of the Elections and Electors Clauses. As for what principle should govern this special federal-court review of state-court interpretations of state constitutions and state statutes, Kavanaugh echoed Rehnquist’s Bush v. Gore concurrence: “whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”30

There is substantial reason to think that Justice Kavanaugh’s decision to write separately in Moore to embrace Chief Justice Rehnquist’s version of the ISLT was tactical. During his time on the Court, Kavanaugh, the Court’s frequent median justice, has used concurring opinions to try to shape the future direction of the Court’s jurisprudence. Consider his surprise concurrence in the Voting Rights Act (VRA) case Allen v. Milligan, which kept Section 2 of the VRA alive despite widespread predictions of its imminent demise.31 In that case, Kavanaugh supplied the critical fifth vote to strike down Alabama’s racially discriminatory legislative map. He joined nearly all of the Chief Justice’s opinion for the Court, including the portion of the opinion in which the Chief Justice concluded, based mostly on the Court’s own VRA precedents, that Section 2 was squarely constitutional as applied to redistricting.32 While he joined the Chief Justice’s opinion, Kavanaugh also penned a separate concurrence, which contained an ominous passage signaling some agreement with a point made in Justice Thomas’s dissent–that “even if Congress in 1982 could constitutionally authorize race-based redistricting under § 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”33 But, Kavanaugh added, “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”34 It seems clear that this Kavanaugh concurrence was responsible for emboldening Alabama’s immediate return to the Court where Alabama sought permission to use a set of maps that were similar in relevant respects to the maps the Court had just invalidated.35 While Alabama’s effort was ultimately unsuccessful, Kavanaugh’s signaling has ensured that other states and litigants continue to mount additional constitutional challenges to Section 2.36

Or consider Justice Kavanaugh’s separate concurrences in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Ass’n v. Bruen.37 Each concurrence explicitly looked ahead to follow-on cases, and each sought to preemptively shape the Court’s approaches to such cases. Kavanaugh joined in full Justice Alito’s majority opinion in Dobbs, supplying the decisive fifth vote to overrule Roe v. Wade and eliminate the federal constitutional right to abortion. But his separate concurrence appeared designed to temper fears about the breadth of the majority opinion; although the question was not presented, he opined that a state could not “bar a resident of that State from traveling to another State to obtain an abortion,” based on the “constitutional right to interstate travel.”38 This could well be important and useful language in future challenges to state efforts to limit interstate travel; our point is merely that Kavanaugh’s use of concurrences to shape the future trajectory of the law is now a familiar move. The same is true of his concurring opinion in the Second Amendment case Bruen. As in Dobbs, he joined the majority opinion in full, and as in Dobbs, he concurred separately to offer his gloss on the opinion; he explained that in his view, the majority opinion allowed states to retain licensing requirements for carrying concealed weapons, so long as they were “objective licensing requirements like those used by the 43 shall-issue States.”39 As in Dobbs, Kavanaugh staked out a position that seemed designed to appear more moderate than the one reflected in the majority opinion. Once again, Kavanaugh’s use of the concurrence to attempt to shape the next case was clearly strategic.

On the ISLT specifically, there are reasons to think that Justice Kavanaugh’s vision could appeal to a majority of the Court at some point in the future. Two members of the Supreme Court have already embraced it: in addition to Kavanaugh, Justice Thomas joined Chief Justice Rehnquist’s concurrence in Bush v. Gore.40

Other members of the Court have endorsed even broader versions of the ISLT, which could lead them to vote with Justice Kavanaugh for the same bottom-line result in future cases. If they did so, Kavanaugh’s narrower opinion could be deemed controlling precedent going forward.41 In Moore, for example, Justice Gorsuch joined Justice Thomas’s dissent, which expressed the view that state courts could not enforce broad, substantive guarantees in state constitutions against state laws regulating federal elections.42 Before Moore, during the 2020 election cycle, four members of the current Court—Justices Thomas, Alito, Gorsuch, and Kavanaugh—seemed to signal their approval of some version of the ISLT that would allow federal courts to second guess states’ interpretation of state laws.43 In one important case involving Wisconsin’s April 2020 presidential primary, the U.S. Supreme Court stayed a district-court order that had extended the absentee-ballot-return deadline to account for COVID-19.44 Later, in the lead-up to the general election, a district court once again ordered the state to extend the absentee-ballot-receipt deadline.45 Once again this decision did not survive appellate review, with the U.S. Court of Appeals for the Seventh Circuit staying the district court injunction,46 and the U.S. Supreme Court denying the request to vacate the Court of Appeals’s stay.47 Gorsuch’s concurrence invoked the ISLT to argue that in addition to the problems with federal courts’ extension of absentee-ballot deadlines, there was a constitutional problem with the Wisconsin Elections Commission’s decision to accommodate voters in light of the pandemic. Gorsuch wrote that “[t]he Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”48 Kavanaugh’s concurrence in the case explicitly invoked the ISLT and Chief Justice Rehnquist’s Bush v. Gore concurrence in particular. He emphasized federal courts’ power to review state courts’ interpretations of state election law, writing that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”49

Other Justices invoked the ISLT in 2020 election cases out of North Carolina and Pennsylvania. In the lead-up to the 2020 election, the North Carolina Board of Elections agreed to a settlement that required extending the receipt deadline for absentee ballots.50 A group of state legislators intervened, arguing that state-court approval of the settlement would displace the state legislature’s authority to set rules regarding federal elections.51 When the state court rejected their argument,52 the intervenors sought emergency relief in the Supreme Court. The Court denied that request, although Justices Alito, Gorsuch, and Thomas would have stayed the state court’s decision.53 Later, after the legislators challenged the state-court judgment in federal court, Justices Gorsuch and Alito invoked the ISLT as a reason to stay the state-court decision extending the absentee-ballot-receipt deadline.54 The full U.S. Supreme Court once again declined to do so, with Gorsuch and Alito dissenting from that decision.55 And in the lead-up to the 2020 election in Pennsylvania, the Pennsylvania Supreme Court held that the state constitution required the secretary of state to extend the deadline for receipt of absentee ballots.56 A request to stay that decision reached the U.S. Supreme Court after Justice Ginsburg died, but before Justice Barrett was confirmed to replace her. The Court divided four to four over whether to stay the decision, with Justices Thomas, Alito, Gorsuch, and Kavanaugh all voting to stay the decision. With only four votes, however, the stay did not issue.57

So, in the run-up to Moore, four members of the current Court seem to have embraced a version of the ISLT that, although underdeveloped, certainly appears as broad as the Rehnquist-Kavanaugh position. While it is unclear if there is a fifth vote for such an approach, there are reasons to think Justice Barrett might provide it. Barrett, like Justice Kavanaugh and Chief Justice Roberts, was on the Bush campaign legal team that first pioneered the Rehnquist-Kavanaugh version of the ISLT.58 That is by no means definitive evidence that she would embrace the theory: While Kavanaugh has explicitly adopted the Bush campaign’s version of the ISLT, the Chief Justice has not. But there are passages at the end of the opinion in Moore that are susceptible to an interpretation that leaves open the door to the Rehnquist-Kavanaugh version of the ISLT. In particular, at the very end of the opinion in Moore, the Court wrote:

Members of this Court last discussed the outer bounds of state court review in the present context in Bush v. Gore. Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. In separate writings, several Justices addressed whether Florida’s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.

Chief Justice Rehnquist, joined in a concurring opinion by Justice Thomas and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.”

We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that 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.59

At least based on the oral argument in Moore, it is unlikely that the Democratic appointees wanted to leave the door open to the Rehnquist-Kavanaugh version of the ISLT. And in light of his prior votes in the 2020 election cases, the Chief Justice also seems unlikely to have insisted on that language.60 While Justice Kavanaugh obviously wanted to preserve the Court’s ability to explicitly adopt the Rehnquist version of the ISLT, there were six Justices in the Moore majority, so his preference on that point may not have been sufficient, on its own, to get the ambiguity into the opinion in Moore. But if Justice Barrett was also hesitant to foreclose the Court from adopting Rehnquist’s version of the ISLT, Barrett and Kavanaugh together could have insisted that the Moore majority remain somewhat vague in that respect. That seems plausible if only because Barrett has not usually been inclined to break with her more conservative colleagues to form a narrow 5-4 majority with the Democratic appointees and the Chief Justice—at least in ideologically salient, high-profile cases.61

While we can only speculate about the provenance of this language, it is clear that Moore contains both gaps and ambiguities. The widely divergent reactions that attended release of the Court’s decision in Moore also suggest that its meaning is very much subject to debate—heightening the risks that the Kavanaugh concurrence could shape Moore’s emergent meaning. Within twenty-four hours of the decision in Moore, essays in the New York Times,62 Slate,63 and the New Yorker64 suggested that the Court in Moore had decisively repudiated the ISLT. Some academic commentators echoed this reading.65 At the same time, a number of pieces warned that the Court’s opinion in Moore had not foreclosed the possibility that future federal courts might second-guess state courts in the context of federal elections.66

Adopting the Rehnquist-Kavanaugh variant of the ISLT could lead the Court to impose an interpretive straitjacket on the states, essentially requiring the states to adopt the Court’s preferred interpretive method, textualism, or even preferred applications of that method (i.e., the Justices’ preferred results) in particular cases. According to Chief Justice Rehnquist and Justice Kavanaugh, the ISLT authorizes federal courts to determine whether state courts (and likely other state actors, such as state executives) have adopted “a fair reading” of state law regarding federal elections.67 This opens the possibility that federal courts could impose their own conception of what constitutes a “fair reading” of legal texts onto state law. The Republican appointees on the Court pledge their fealty to textualism, an interpretive method whose “key claim . . . is that judges interpreting statutes should limit themselves to the ‘plain meaning’ of the words of the statute in question.”68 So, as we have explained in previous work, the textualist Justices could insist that only textualist approaches to state law constitute “fair readings” of state law.69

Despite being unified in their professed commitment to textualism, the Justices’ methods of statutory interpretation are in fact both variable and malleable,70 as well as itinerant.71 But these observations only underscore that the Justices would have considerable discretion in deciding which versions of textualism and applications of textualism would be acceptable. That is, the Justices could declare that only particular results in certain cases are consistent with the Justices’ vision of textualism.72 But as Justice Kagan pointed out during the oral argument in Moore, even “very good judges on very good courts can find it incredibly easy to disagree with each other,” and every judge writes “opinions” “saying that other judges” “have engaged in policymaking rather than in law.”73 That’s “just sort of one of the things that judges say when they really disagree.”74 As such, the ISLT could provide an avenue for Justices to characterize readings of state law with which they disagree as not “fair readings” for purposes of the ISLT, and accordingly unconstitutional under the Elections or Electors Clause.

This summary of the ISLT as a stalking horse for the Justices’ preferred method of statutory interpretation, and even their preferred results in statutory cases, captures how Chief Justice Rehnquist applied his version of the ISLT in Bush v. Gore. Rehnquist faulted the Florida Supreme Court for concluding that canvassing board decisions about recounts were subject to de novo review when, in his view, the Florida statutory scheme “clearly vests discretion whether to recount in the boards.”75 He also maintained that the Florida Supreme Court had misconstrued several specific terms or phrases in the Florida statutory scheme, including “an error in the vote tabulation” and “rejection of . . . legal votes.”76 He said the Court could sit in judgment of the state court’s interpretation of state law because the ISLT required that “the clearly expressed intent of the [state] legislature must prevail” and there was “no basis for reading the Florida statutes” the way the Florida Supreme Court had.77 He even specifically faulted the Florida Supreme Court’s “textual analysis.”78 Conveniently, the interpretation of state law that Rehnquist insisted was required by the Federal Constitution meant that the recount ordered by the Florida Supreme Court could not proceed, a result that ended the postelection proceedings and handed the presidency to George W. Bush. But as the next three Parts explain, the ostensible legal basis for Rehnquist’s concurrence—his particular twist on the ISLT—has no support in history or principles of federalism and democracy.

II. history

In the abstract, the Rehnquist-Kavanaugh standard—“whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required’”79—might appear reasonable. But a close examination of the Rehnquist-Kavanaugh position reveals that it is in fact quite radical.

This Part shows that the Rehnquist-Kavanaugh version of the ISLT is at odds with the Moore majority’s history-and-tradition approach to evaluating the ISLT. In determining whether state courts had the power of judicial review under substantive provisions in state constitutions, Moore focused on state interpretive practices around the time the Federal Constitution was ratified, as well as practices leading up to and postdating ratification.80 Judged by these metrics of history and tradition, any federal-court effort to limit state courts to especially “textualist” methods of interpretation of state law fails. State courts and other state interpreters have long practiced varied methods of interpretation when interpreting both state statutes and state constitutions, and some of those methods do not remotely resemble the kind of textualism that the Rehnquist-Kavanaugh version of the ISLT could impose on the states. If anything, there is a robust history and tradition of nontextualism when it comes to how state courts interpret state statutes and state constitutions.

The period surrounding and following the Constitution’s ratification featured a variety of structural and interpretive approaches. Start with the materials cited in Moore itself—materials the Court has already identified as salient to evaluating the ISLT.81 The Court cited William Michael Treanor’s article, Judicial Review Before Marbury, to describe the particulars of the case Trevett v. Weeden, an early Rhode Island Supreme Court decision, as well as the evolution of judicial review in the states more generally.82 The Moore Court also cited “the 1786 case Trevett v. Weeden” as one of the “state court decisions” that “provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.”83 Treanor described the argument that prevailed in Trevett as “striking for its nontextualism.”84 The decision included “appeals to natural law” and, more generally, a lack of grounding in a written constitution.85

Something similar could be said about the three other cases Moore relied on to establish the bounds of the ISLT—State v. Parkhurst, Bayard v. Singleton, and Vanhorne’s Lessee v. Dorrance.86 State v. Parkhurst interpreted the New Jersey Constitution by relying on previous state-court decisions, treatises (specifically what was “said by Lord Coke”), and “ancient grants and local customs and usages” that might shed light on a “general principle.”87 The focus of the opinion, in other words, was not on the text of the state constitution as such. The state court’s reasoning emphatically drew upon structural principles that the court inferred from the nature of the state’s constitutional system. The state court rejected certain evidence from history on the ground that a certain “practice” was “too corrupt to give precedent to a free and virtuous republic,” invoking a value-laden inference from structure.88 The state court also pointed to “the nature of the thing itself,” meaning the nature of the offices the court’s ruling touched on.89 This is not what one would call an especially textualist or even originalist decision.

Nor is Bayard v. Singleton.90 The reporter’s notes to Bayard indicate the decision relied on “the policy of all Nations and States” and “general maxim[s]” to interpret the North Carolina constitution.91 That is not a concerted focus on the text of the state’s constitution. The same is true for Vanhorne’s Lessee v. Dorrance. There, the court inferred a general principle from several provisions in the constitution, writing that “[f]rom these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man.”92 The court’s decision also emphasized “the social compact” and “principles of reason, justice, and moral rectitude.” It evaluated legal arguments based on “the comfort, peace, and happiness of mankind,” “social alliance in every free government,” and “the letter and spirit of the [state] Constitution.”93 This kind of reasoning, too, is not exactly a hallmark of textualism.

Those are just the cases cited in Moore itself, but many other state court opinions display similarly pluralist modes of reasoning. In In re Opinions of Justices, the New Hampshire Supreme Court assessed the constitutionality of a state law by examining what was “inherent in the nature of the right to vote,” “the nature of popular elections,” “the history of popular elections in this State,” and “practice under the Constitution,”94 in addition to the common, ordinary meaning of words.95 In Patterson v. Barlow, the Pennsylvania Supreme Court asked about the purpose of state law—what “was evidently intended” by various provisions in the state constitution and the state’s declaration of rights.96 The court also focused on the effects of different legal interpretations—and whether “it would be in vain for the Constitution to declare that all persons who have complied with certain prerequisites shall enjoy the right of electors, if the legislature can by law exclude them practically from such compliance.”97 In analyzing the state constitutional claims, the court took particular care to analyze the practical burdens that a law would impose on different voters, with attention to the reality of Pennsylvanians’ lives:

The class upon whom this invidious burden is laid is large and respectable, comprehending journeymen mechanics, clerks in banks, insurance offices, and other corporations, as well as in stores and manufactories, and unmarried workmen in all kinds of employment, who are usually boarders in some shape or other. Practically, numbers will find it very difficult, if not impossible, to fulfill these conditions.98

This reasoning was not an aberration. In Jeffries v. Ankeny, the Ohio Supreme Court rejected a claim that persons of Native American descent could not be “free white citizens” under state law.99 The court reasoned “that no other rule could be adopted, so intelligible and so practicable as this; and that further refinements would lead to inconvenience.”100 The dissent pointedly chastised the majority for being insufficiently textualist: “The words of the statute, in my opinion excludes Indians and part Indians.”101

In other cases as well, state courts rejected arguments grounded in the ordinary or plain meaning of words in state law if the courts determined that ordinary meaning conflicted with a sensible understanding of the structure and design of state law. In Warren v. City of Charlestown, the Supreme Judicial Court of Massachusetts acknowledged that the statute’s “terms ‘take effect,’ if they stood alone, would seem to imply that it shall have no effect, that it shall not go into operation, until accepted.”102 Then the court explained: “But if that were the meaning, no meeting could be held under it, or by force of it. And from its connection, we are satisfied that this was not the intention of the legislature.”103 The Supreme Court of New York reasoned similarly in Barker v. People.104 There, the court rejected a constitutional challenge to a state law barring duelers from holding office.105 The challengers pointed to a state constitutional provision that “no other oath, declaration, or test” besides the oath of office “shall be required as a qualification for any office or public trust.”106 “[I]t is contended,” the court explained, “that the word test has a most extensive meaning, and prohibits the establishing any other rule by which the capacity of a person to hold an office shall be determined, than that defined, the oath of the person appointed or elected.”107 But, the court wrote, “I cannot accede to this.” The constitutional provision “means only, that no other oath of office shall be required. It was intended to abolish the oath of allegiance and abjuration, or any political or religious test, as a qualification.”108

In other cases, state courts explicitly rejected textualism as such. In the Prohibitory Amendment Cases, the Kansas Supreme Court wrote: “It is an old and familiar doctrine that that which is within the spirit of the statute, though not within the letter, is a part of it; as well as that which is not within the spirit, but within the letter, is not a part of it.”109 Another maxim the court recognized was that “Words and phrases, by usage and acquiescence, ofttimes acquire a meaning beyond their natural import.”110 The Missouri Supreme Court reasoned similarly in Blair v. Ridgely. There, the court wrote, “Ordinarily, it may be true, that when we speak of the people, the entire body of the inhabitants of the State is comprehended. But this cannot be so in a political sense. It can only mean that portion of the inhabitants who are entrusted with political power.”111 The New York Superior Court offered a formulation that is perhaps among the most pointed antitextualist approaches to statutory interpretation: “A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers.”112

In still other cases, the courts used substantive canons of construction—i.e., particular canons that suggest courts should place a thumb on the scale to favor certain substantive values. Courts invoked canons that urged courts to interpret laws with an eye to enhancing democracy. In State ex rel. Quinn v. Lattimore, the North Carolina Supreme Court reasoned that because “this is a government of the people, in which the will of the people,—the majority,—legally expressed, must govern,” “all acts providing for elections, should be liberally construed, that tend to promote a fair election or expression of this popular will.”113 That decision was not an aberration—there are other early precursors to substantive canons that call to mind something like a democracy canon that states might apply to the interpretation of state laws. In Mayor of New York v. Lord, the Supreme Court of Judicature of New York interpreted a state law by acknowledging that the purpose of the statute was “remedial” and therefore the provisions “must be liberally expounded.”114 And the court adopted the “more reasonable and just construction.”115

These cases and others suggest that imposing “textualist” principles of interpretation on the state courts would conflict with Moore’s understanding that the constitutional system incorporates state approaches to judicial review and legal interpretation that existed at the Founding. Of course, there are more textualist opinions in addition to the nontextualist ones we have cited;116 our argument is not that nontextualism predominated at any particular point in time.

Our argument is more modest: the states’ longstanding interpretive methods are far more pluralist than the Rehnquist-Kavanaugh version of the ISLT seems to contemplate and far too pluralist to justify the federal courts imposing particular methods of interpretation (such as textualism) on the states under the guise of the ISLT. Any version of the ISLT that would impose textualism writ large on state courts or particular textualist applications on state courts has no grounding in history.

III. federalism

Imposing textualism on the states under the guise of the ISLT would also be inconsistent with federalism. Just as Justice Brennan identified state constitutions as sources of different and more expansive rights than the federal system, so too are states sites of considerable structural and interpretive variation.117 The Rehnquist-Kavanaugh version of the ISLT could impose on the states a set of interpretive rules that are derived from structural principles unique to the federal system and could even impose federal structural arrangements on the states, depriving states of the ability to structure and run their court systems and other governmental institutions as their citizens see fit. It could also deny state courts the ability to devise methods of constitutional and statutory interpretation that align with or grow out of the state’s structural choices and that diverge from the choices made in the federal system.

A. State Structural Variation

The Rehnquist-Kavanaugh vision could limit state courts’ interpretive latitude by seeking to impose on those courts—under the guise of merely mandating a “fair reading”118 of state law—a narrow textualist mode of interpretation. But whatever its merits in the federal system, that narrow version of textualism is not required based on the structural features of state systems. There are important distinctions between state and federal courts. In light of these differences, imposing on state courts a federally derived vision of the proper judicial role would be inconsistent with the parts of Moore’s reasoning that recognized that state institutions, including state courts, state constitutions, and state legislatures, derive their authority from the people. Moore rejected the maximalist version of the ISLT because it did “not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life,” that is, state constitutions that are adopted by the people.119 Those very state constitutions choose to arrange and empower state institutions in a wide variety of ways—ways that frequently differ in important respects from the federal system.

1. State Courts

In many states, the people have chosen to give their state courts powers that the federal courts do not have. Some state courts have the power to issue advisory opinions and to fashion more permissive rules of standing than exist under the Supreme Court’s interpretation of Article III.120Some state courts also perform administrative and even quasi-legislative functions that would be unthinkable in the federal system.121 All of these are perfectly permissible choices for state voters and state constitutions to make; but all of them could be challenged as representing departures from the “ordinary” (viz, federal) judicial role, and therefore perhaps the ordinary bounds of judicial review. And these additional powers make clear that a foundational precept of textualism—that courts must hew closely to the words of statutes, because of the particular and limited role federal courts play within the federal system—simply does not apply to the states.122

In addition, in the vast majority of the states, judges of the highest court stand for election—some partisan, some nonpartisan, and some retention.123 The high courts in the vast majority of states also have limited terms, with some imposing term limits and others mandatory retirement ages.124 Only in Rhode Island do state judges, like those in the federal system, retain their positions during “good behavior.”125 These state-level decisions about judicial selection and tenure clearly do not reflect the same choices and values as the decision to insulate federal judges from popular selection and direct political accountability. These structural choices have implications for interpretation and interpretive methodology. Textualism assigns responsibilities between the federal courts, the federal executive, and the federal legislature in part based on assessments about which branches are relatively more accountable than others;126 these assessments are simply inapplicable in the states, given the structure and operation of state courts.

2. State Lawmaking

States and state lawmaking processes also deviate from the federal lawmaking process in ways that may bear directly on questions of interpretive methodology. The specific attributes of the federal lawmaking process are central to justifications for textualism as a mode of interpretation in the federal system.127 But lawmaking processes look fundamentally different from the federal model in many states. First, state legislative processes are distinct from the Federal Constitution’s “bicameralism and presentment”128 process of lawmaking. Nebraska, for example, notably has a unicameral legislature.129 Unlike the federal system, many state legislators are subject to term limits.130In contrast to the president, most governors can use the “item veto” to disapprove portions of appropriations bills and sometimes other kinds of bills.131 In many states, governors may use executive orders to achieve ends that would require legislation in the federal system, like reorganizing the executive branch.132 So when it comes to lawmaking by legislatures, states often do not possess the core feature of the federal system—bicameralism and presentment—which, according to some, require the federal courts to use textualism.

In addition to these differences, about half of the states allow for some form of direct democracy—devices, like referenda or ballot initiatives, that allow voters to bypass representatives and enact laws or constitutional amendments directly.133 Many state constitutional provisions governing such procedures expressly indicate that they operate to “withhold power from state legislatures and retain it for the people.”134 These provisions are a key illustration, as Jessica Bulman-Pozen and Miriam Seifter have shown, of state constitutions’ commitment to the values of “political equality, popular sovereignty, and majority rule.”135 And because these mechanisms are available for constitutional as well as statutory change, they reflect yet another critical and enduring difference between states and the federal system: while the Article V process makes the Federal Constitution virtually unamendable today,136 state constitutions, by contrast, are fundamentally dynamic documents, subject to frequent formal change at the hands of the people. Surely it is appropriate for state courts to take seriously the provenance of laws and constitutional provisions that emerge from the people directly—and therefore to interpret state law in ways that deviate from federal courts interpreting federal statutes and the Federal Constitution, which contain no such mechanisms for direct democracy.137

3. State Executives

State executives, too, stand in stark contrast to the federal executive. While in the federal executive branch, only the president and vice president are elected, all state executives are plural to some degree: in most states, voters cast ballots for multiple statewide executive-branch officials.138 The Supreme Court has even acknowledged this in the context of litigation, crediting state choices to divide litigation responsibility among different executive-branch officials.139

This could implicate assumptions both about what modes of interpretation are legitimate and about which institutional actors are legitimate interpreters. Independently elected state officials like secretaries of state, or locally elected or appointed election administrators, could interpret state election laws in ways that expand rather than constrict access to the ballot. In doing so, they could rely on modes of interpretation that, as discussed above, focus on purpose, rely on prodemocracy principles, or otherwise deviate from precepts of textualism.140 A Court that insists upon a federally forged notion of a “fair reading” of a statute’s meaning might be unable or unwilling to appreciate that institutional context.

B. State Interpretive Variation

The Rehnquist-Kavanaugh vision could also constrain state courts’ interpretive latitude and the variation among state courts’ interpretive practices.

This could mean limiting state courts’ (and state legislatures’ and state constitutions’) ability to reject textualism and plain meaning as the lodestars of statutory interpretation.141 It could also mean limiting state courts’ ability to consider context, purpose, and practical consequences in their interpretations of statutes and state constitutions, or limiting state courts’ ability to engage in forms of dynamic or living constitutionalism when interpreting state constitutions.

It could also include prohibiting state courts from invoking certain canons, or from placing more importance on those canons than the literal meaning of a statute. One potentially excluded canon of construction is the one that Jessica Bulman-Pozen and Miriam Seifter have derived from the “democracy principle” embodied in state constitutions. This principle, which we elaborate more on below, places a thumb on the interpretive scale to favor democracy-enhancing interpretations of state law.142 Constraining or even disallowing state courts from adverting to this principle would be a particularly egregious move in that it would disallow state courts from making moves that the Supreme Court has been willing to make in the Court’s recent embrace of other substantive canons or clear statement rules. A prime set of examples is the Court’s recent “major questions doctrine” cases, which use a “super-strong clear statement rule” to deny agencies the power to issue regulations that the Court deems to have “economic and political significance,” even where statutes appear to delegate to agencies the asserted authority.143

The Rehnquist-Kavanaugh vision could also constrain state courts’ ability to break with the federal courts in their approaches to stare decisis, including by using stronger or weaker forms of the doctrine, or identifying special rules or considerations for overruling prior cases.

In short, as this list demonstrates, the facially reasonable “fair reading” requirement could yolk state courts to federal courts in their interpretive approaches, forcing state court “lockstepping” of the sort Justice Brennan warned against. Empowering federal courts to superintend state courts’ interpretation of state law in this way would be fundamentally incompatible with federalism.

* * *

These are just some of the issues that Moore left for another day, all but guaranteeing that enterprising litigants will seek to advance arguments that state-court decisions do not survive whatever scrutiny they claim Moore prescribes.144 But in light of the state-level realities discussed above, federal courts should not evaluate state decisions according to a set of interpretive rules that grow out of the federal experience. Doing so would be incompatible with general principles of federalism that limit the extent to which federal actors may impose either particular structural arrangements or interpretive philosophies on the states.145 Attempting to constrain state courts in their interpretation of legal texts would also be inconsistent with the notion, reflected throughout Moore, that federalism requires granting state courts at least the same powers their federal counterparts enjoy. Moore understood that one important such power is the power of judicial review. When and if the Court considers adopting the Rehnquist-Kavanaugh version of the ISLT, it must reckon with what both history and core principles of federalism make clear—that the relevant power encompasses pluralist methods of interpretation.

IV. democracy

The Rehnquist-Kavanaugh variant of the ISLT may also be at odds with democracy as envisioned in state constitutions or elsewhere—focused on prioritizing majority will and ensuring that everyone’s votes and voices matter equally.146 These conceptions of democracy, grounded in majority will and access to meaningful participation, may occasionally be in tension with one another, such as where a political majority attempts to suppress a minority’s political power. But laws that suppress a minority group’s political power are themselves undemocratic insofar as they restrict the franchise, or make some people’s votes count more than others. So, we focus on a version of democracy that prioritizes allowing people to vote and assigning equal weight to everyone’s votes.

The Rehnquist-Kavanaugh version of the ISLT could limit state courts’ ability to rely on democracy-reinforcing canons or principles generally inferred from state constitutions that prioritize interpretations that favor democracy; it could also limit the extent to which elections are responsive to democratic preferences. In any case in which it is used, the Rehnquist-Kavanaugh ISLT version would add a comparatively less democratic layer of federal-court review on top of a comparatively more democratic one in the states. Underscoring its antidemocratic nature is the fact that, in its appearances to date, the ISLT has served as a mechanism for barring state institutions from remedying antidemocratic practices like partisan gerrymandering.

A. Democracy Canons & Constraints

The Rehnquist-Kavanaugh account of the ISLT could undermine democracy to the extent it limits state courts (or other state offices) from relying on prodemocracy interpretive principles, meaning principles that reinforce measures that allow people to vote and ensure that votes will be counted, which generally facilitate majority will. Prodemocracy interpretive principles might include a “democracy canon,” by which we mean a substantive canon of interpretation that directs interpreters to construe state statutes, regulations, or constitutions in ways that preserve or promote democracy rather than obstruct it. Such a canon might present as a clear statement rule that requires legislators to be especially explicit when laws restrict democracy; a court might decline to read a statute to restrict democracy absent the clearest indication from the text.147

As a substantive canon, the “democracy canon” could be at odds with the wooden formulation of textualism that this Supreme Court sometimes adheres to.148 Under that version of textualism, courts are not supposed to consult background principles or substantive-value-laden principles, but instead are to focus only on the semantic meaning of the words enacted in a legal text.149 If the Rehnquist-Kavanaugh account of the ISLT allows federal courts to police state courts’ or state executives’ departures from the brand of textualism that does not permit interpreters to consult substantive canons, then it would conflict with states’ reliance on the democracy canon or something like it.

The Rehnquist-Kavanaugh account of the ISLT could also undermine democracy by precluding state interpreters from relying on other democratic interpretive principles. For example, there is the widespread practice of courts inferring a commitment to democracy from various provisions in state constitutions that ensure democracy.150 The state constitution might not, in so many terms, contain a provision that specifically says “this state is democratic,” or “this state values democracy.” But interpreters might nonetheless infer a general commitment to democracy from specific provisions in the state constitution pertaining to democracy, such as provisions allowing citizens to engage in direct democracy by amending the state constitution through ballot initiatives.151 The Pennsylvania Supreme Court, for example, concluded that partisan gerrymandering violated the state constitution in part by adopting a “broad and robust” reading of the free and equal elections clause in the state constitution and reasoning that the unequal voting power enabled by partisan gerrymandering is “the antithesis of a healthy representative democracy.”152 The court also emphasized that “for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.”153 Similarly, when the North Carolina Supreme Court limited the gerrymandered legislature’s ability to initiate amendments to the state constitution, the court emphasized that “popular sovereignty and democratic self-rule” were “the beating heart of North Carolina’s system of government.”154

Because this method of interpretation infers general principles from more specific provisions, it too is potentially at odds with certain variants and iterations of textualism.155 And the Rehnquist-Kavanaugh account of the ISLT, by allowing federal courts to police how state courts practice textualism (or state courts’ interpretations more generally), opens up the possibility of a federal court limiting the extent to which state courts may infer general democracy-reaffirming commitments from more specific provisions in state constitutions.

B. Elections & Democracy

The Rehnquist-Kavanaugh version of the ISLT could also make states less democratic by severing the link between democracy and the substantive outcomes that result from democratic elections, i.e., the extent to which elections can implement the will of the voters. The Rehnquist-Kavanaugh version could limit the extent to which state interpreters may change their interpretive practices after voters in the state elect new justices to the state supreme court or new statewide officials like secretaries of state—if the U.S. Supreme Court Justices view the interpretive practices as novel, or as generating less than “fair readings” of state law.

Statewide elections are mechanisms for democracy in that they allow voters to select their preferred officeholders; when those officeholders are judges, judicial elections may be mechanisms of popular constitutionalism, making constitutional interpretation more democratic by taking into account the people’s views of the constitution.156

Statewide elections allow voters to select one officeholder over another based (at least in part) on what the officeholder may do while in office. For example, in the 2023 Wisconsin state supreme court election, the two candidates differed starkly with respect to their positions on gerrymandering and abortion. The progressive candidate, now-Justice Janet Protasiewicz, referred to gerrymandered maps as rigged, and spoke of the value in reproductive freedom and reproductive justice. The conservative candidate, former Justice Dan Kelly, had defended the state legislature’s gerrymandered maps, and was endorsed by the state’s three largest antiabortion groups.157 The voters preferred Justice Protasiewicz by a large margin.158

The Rehnquist-Kavanaugh version of the ISLT could prevent a statewide judicial election from delivering on its democratic promise and responding to the preferences of voters. Justice Kavanaugh’s Moore concurrence seemed to suggest that under his version of the ISLT, changes in state interpretations might be especially suspect. He wrote that he would rely on Chief Justice Rehnquist’s guidance from Bush v. Gore that federal courts “necessarily must examine the laws of the State as it existed prior to the action of the [state] court.”159 As one of us has written, “[t]his formulation” of the ISLT “has echoes of the anti-novelty principle that the Supreme Court has applied in constitutional law cases about the scope of Congress’s powers, and in administrative law cases about the scope of agencies’ authority under federal law. In those cases, the Court treats novelty as a mark against the lawfulness of a federal law or federal regulation.”160 In Moore, Kavanaugh seemed to suggest that novelty in state officers’ interpretation of state laws should be counted as a mark against the federal constitutionality (under the ISLT) of the state officers’ interpretation.

But there may be changes in how state officers interpret state law because of an election, whether that is for statewide judicial office or other statewide office.161 By allowing the federal courts to decide which changes in state interpretations are permissible, Justice Kavanaugh’s take on the ISLT is at odds with one way that state elections are supposed to be democratic—by generating officeholders who will respond to the preferences and views of the majority of voters who selected them. His version of the ISLT therefore potentially undermines one of the constitutional system’s mechanisms for democracy through which voters are able to translate their preferences into results through the officeholders they select.

C. Less Democratic Interpretive Review

Another antidemocratic aspect of the Rehnquist-Kavanaugh take on the ISLT is baked into the structure of the ISLT. The ISLT superimposes a comparatively less democratic layer of review (review in the federal courts) onto a comparatively more democratic layer of review (review in the states). Whether the relevant interpreter is a state court or state executive, the states’ interpretation of state law is probably more democratic than the federal courts’ interpretation of state law insofar as the state interpreters are elected, as many state courts or statewide officers are.162 The states’ interpretation could also be more democratic than the federal courts insofar as the state interpreters are subject to oversight by an elected statewide officer, as other state officers are.163

D. Insulating Antidemocratic Practices

Still another way that the Rehnquist-Kavanaugh ISLT account is undemocratic has been borne out by how the ISLT has been used. The ISLT is often invoked to insulate undemocratic practices from meaningful scrutiny. In Moore v. Harper, the ISLT was the basis for challenging state judicial review of partisan gerrymandering, an undemocratic practice whereby legislators draw districts in ways that lock in their power at the expense of voters and democracy. Partisan gerrymandering can result in legislators remaining in power even when a majority of voters would prefer another set of legislators.164 The ISLT (or something like it) was also the basis for challenging another mechanism to combat partisan gerrymandering, independent redistricting commissions.165 And of course in Bush v. Gore, Chief Justice Rehnquist’s original version of the ISLT supplied a way for the federal courts to order the state to stop manually counting presidential votes—even though such counting was necessary to ensure that all of the votes were counted accurately. Elsewhere, the ISLT supplied a way to challenge expansions of democracy. In the 2020 election cases, the ISLT provided the arguments for challenging mechanisms for extending absentee voting in the midst of a pandemic166—arguments that, if accepted, might have ensured that some votes did not count at all.

Part of what makes this pattern striking is that judicial interpretations that restrict democracy are not always especially textualist. Yet ISLT proponents do not seem especially interested in challenging atextual and nontextualist interpretations of state law that restrict voting. Take Teigen v. Wisconsin Election Commission, where the Wisconsin Supreme Court invalidated Wisconsin executive officers’ decisions to authorize municipal clerks and local election officials to create ballot drop boxes and allow family members or others to return a voter’s absentee ballot.167 In ruling against these pro-democracy practices, the Wisconsin Court rejected the election officials’ “hyper-literal interpretation of” the statute’s “prepositional phrase”168—and yet no ISLT challenge to that interpretation materialized.

Nor are ISLT proponents particularly interested in challenging judicial about-faces when those about-faces restrict voting. For example, immediately after the North Carolina Supreme Court switched from a majority of Democratic Justices to a majority of Republican Justices, the Court promptly reversed two previous North Carolina Supreme Court decisions, one that had held partisan gerrymanders unconstitutional, and the other invalidating the state’s voter identification requirement.169 Yet proponents of the ISLT were conspicuously silent on the court’s conduct in both cases.

In short, the social and legal practice of the ISLT has been antidemocratic. Indeed, in some ways antidemocracy is at the core of the ISLT. The Federal Constitution provides myriad ways to challenge state policies or practices that restrict voting. Constitutional provisions prohibit states from discriminating against certain voters, i.e., making it harder for those voters to vote or limiting the power of those votes. These provisions include the Fifteenth Amendment, which prohibits vote denials on the basis of race; the Nineteenth Amendment, which prohibits vote denials on the basis of sex; and the Twenty-Sixth Amendment, which prohibits vote denials on the basis of age. There are also provisions that implicitly guarantee a right to vote, like the Fourteenth Amendment.

If these provisions are ways of safeguarding democracy and voting, what is the ISLT for? Put differently, what does the ISLT add to these federal voting protections? The ISLT offers an argument in the other direction—a way to challenge state practices that expand the franchise or attempt to make state institutions more democratic. At the core of the ISLT is a kind of antidemocracy that has been borne out in how the theory has been used in practice.170

Conclusion

The ISLT’s species of antidemocratic textualism has recently reared its head in other democratic efforts. Those include the efforts to hold people accountable for the events of January 6, when a mob stormed the U.S. Capitol, resulting in several deaths and delays in certifying the vote for President Joe Biden.171 In addition to the civil and criminal actions seeking to hold former President Trump accountable for his role in January 6, some litigation argued that former President Trump is disqualified under the Fourteenth Amendment from running for or again holding the office of President because of his role in January 6.172 The relevant provision of the Federal Constitution, Section 3 of the Fourteenth Amendment, says that “No person shall . . . hold any office” if they “have engaged in insurrection or rebellion against” the United States.173 In December of 2023, the Colorado Supreme Court held that this provision of the Fourteenth Amendment disqualified Donald Trump from running for office.174 In that same month, the Maine Secretary of State reached the same conclusion.175

Those decisions were challenged, and the Colorado case quickly made its way to the U.S. Supreme Court. There, the lawyers representing Donald Trump argued, among other things, that the Colorado Supreme Court decision contravened the independent state legislature theory. In the state-court opinion holding that Trump was disqualified under the Fourteenth Amendment, the Colorado Supreme Court had noted that under Colorado law, only “a qualified candidate” is entitled to participate in the presidential primary.176 Illustrating the antidemocratic textualism of the ISLT in action, Trump’s opening Supreme Court brief insisted that the Colorado court’s reading “is not even remotely what the [Colorado] statute says.”177 The brief argued that “[w]hen state courts interpret an election statute according to what they would like it to say rather than what it actually says,” the courts violate the ISLT.178

This theory did not get much air time during the argument in the case. But neither did the Court’s ultimate decision inter the ISLT once and for all. Rather, in one of many conclusory sentences in the opinion, the Court declared, after acknowledging the Elections and Electors clauses, that “there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates.”179

So the ISLT continues to lie in wait for other antidemocratic uses, including possibly nullifying important changes in the composition of state courts that arose through democratic elections. As previously noted, in April 2023, Wisconsin voters elected to the Wisconsin Supreme Court a justice who changed the ideological makeup of the court. Almost immediately, the state’s heavily gerrymandered legislature began suggesting it might attempt to impeach the new justice, Janet Protasiewicz. The legislature sought to frame their effort as growing out of a concern for judicial ethics: the ostensible predicate for the threatened impeachment was Justice Protasiewicz’s campaign rhetoric regarding the state’s gerrymandered legislative maps, together with her failure to recuse from a challenge to those maps. But the effort was clearly driven by a fear that a newly constituted Wisconsin Supreme Court might invalidate the antidemocratic gerrymander that had locked in Republican control of the state legislature for years. Facing outcry, backlash, and pushback, including from former conservative justices of the Wisconsin Supreme Court, the state legislature balked.180 Perhaps they realized that the people of Wisconsin would not stand for their representatives doing something as antidemocratic as impeaching a justice for winning an election. Whether the theory may yet be invoked in litigation challenging the state’s partisan gerrymander remains an open question.

But the federal courts do not have to worry about electoral or political pushback in the same way that state legislatures do (even very gerrymandered ones). And the Rehnquist-Kavanaugh version of the ISLT, were it to become the law, could do a great deal of antidemocratic damage, accomplishing via litigation at least some of what an antidemocratic impeachment effort would have done—jettisoning democratic inputs to state offices, and undermining the democratic and federalist premises of our constitutional system.

Professor of Law, University of Michigan Law School; Professor of Law, University of Pennsylvania Carey Law School. Thanks to Jillian Gordner, Sara Shapiro, Michelle Wolk, and Ivy Wysong (Michigan Law) and to Megan Bird and Narintohn Luangrath (University of Pennsylvania Carey Law School) for terrific research assistance and to the Yale Law Journal editors for their superb editorial assistance and suggestions.