I will say it upfront: I had no faith that SCOTUS would help defend democracy from batsh*t-crazy right-wing extremists despite recent rulings that seem to be signaling a less radical SCOTUS. (The term is not over yet!) As with everything relating to this uber-conservative supermajority, I have to wonder what’s the catch and, perhaps more importantly, what kind of horse-trading took place to ensure the results of Moore v. Harper. I read the majority opinion in this case and tried reading the dissenting opinion but gave up when Thomas started talking about “Harper III,” which is an attempt to patronize critics and create a level of absurdity in treating the matter; Thomas likes to do that, especially when he’s on the losing side of an argument. Harper III is a reference to the several times the same case made its way through the North Carolina Supreme Court as well as SCOTUS. A redress of a redress of a redress. Thomas, in his typical jejune attitude and “eloquence,” likes to believe if the majority argument wins out, then it is because the other justices’ reasoning is so ridiculous that he has to treat the entire case flippantly. It’s his way of having a temper tantrum. I expected nothing less from a legal “scholar” at the highest level of the judiciary who has been called out repeatedly for his corruption. But I digress.
Now, to the meat of the matter. The question was, Does the state legislature have power beyond the reach of judicial review when it comes to federal elections — the “Times, Places, and Manner” thereof? This all-powerful, beyond-reproach view is known as the independent state legislature theory. In short, Roberts concludes, “We are asked to decide whether the Elections Clause carves out an exception to this basic principle [judicial review]. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” In other words, if a state legislature decides to change anything relating to federal elections that may run afoul of the state constitution, then the state courts have a constitutional right (obligation) to adjudicate such controversies. So, it would seem that SCOTUS has saved the country’s democracy from red states that would install their own elected officials regardless of election results and be unreviewable by the courts.
So, what’s the catch? There is no such thing as a free lunch, and, as absurd as it may seem, these justices do horse trade when it comes to the law, which begs the question, How can “sound” legal reasoning be so malleable that one’s opinion can be swayed by the deals made to ensure outcomes of another, unrelated cases? It is a curious thing, indeed. Thus, I do not doubt that what this SCOTUS gave to us by saving our democracy, it will easily take away by enshrining discrimination against minorities in the following, yet to be decided cases, especially 303 Creative LLC v. Elenis. I have little doubt that SCOTUS will sanction and legalize discrimination against the LGBTQ community in the name of religious freedom and, in so doing, will open the floodgates of discrimination as the Court will be unwilling to second-guess the validity and sincerity of one’s religious assertions. Before you know it, people will deny service of any sort because of “religious freedom.” One can almost guarantee the outcome of 303 Creative LLC merely by how late in the term this opinion will be released. For an institution that claims to be so solemn, stately, and measured, it sure does like to engage in flare and spectacle by saving the most significant cases for the final days of the term as if they wait until the last minute to strip people’s rights away in some grand gesture of preserving those soon-to-lost privileges until the last second. Gee, thanks! The Court has surprised us in recent weeks with decisions leaning toward the liberal side, and now they will (not so much) surprise us with decisions going in the other direction. I’m sure the majority will attempt to narrow the scope of discrimination by stating that in the 303 Creative LLC case, one may legally discriminate because the freedom of creative expression is protected under the First Amendment, which they will try to differentiate from providing a service, but the distinction will be without a difference as they try to split that baby. Soon everyone will claim everything they do is a form of creative expression in order to discriminate against the gays! What good is democracy if you’re not free anyway? Brace yourselves, morns! Welcome to stupid America!