So Much Wasted Time in the Independent State Legislature Oral Argument

by Michael C. Dorf

The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented.

Let's start with the biggest time waster. David Thompson, arguing on behalf of the North Carolina legislature, conceded for the sake of argument that the North Carolina Supreme Court gave North Carolina statutes and the North Carolina Constitution a permissible interpretation, regardless of what standard SCOTUS uses in these cases to review a state court's application of state law--whether the completely deferential test federal courts routinely apply pursuant to the Erie doctrine or the somewhat less deferential (but still deferential) test articulated by Chief Justice Rehnquist for himself and Justices Scalia and Thomas in their Bush v. Gore concurrence. The argument Thompson made was that the Elections Clause of Article I, Sec. 4 precludes state courts from invalidating any state legislation governing congressional elections on the basis of a state constitution's substantive provision--regardless of whether the state court interpreted the state constitutional provision correctly, permissibly, or otherwise.

Thus, as each of the three advocates for the other side (a trio of past and present US Solicitors General) pointed out at one point or another, Moore presents no occasion for the Court to say whether it's adopting the Bush v. Gore concurrence's approach or some other approach to deciding how deferential to be in reviewing state court interpretations of state law (whether an interpretation of a statute or a constitutional provision). Nonetheless, a whole lot of attention was paid to that question, including pointless diversions by Neal Katyal (arguing for the private respondents) and Justice Alito.

I'll start with Katyal, then say a few words about Alito. I'll then note some other objections to the substance of what was said. And then I'll add some criticisms of the Justices for what struck me as arguably rude behavior before coming to what should have been the central focus of the argument if so much time hadn't been wasted.

Repeatedly during the argument, Katyal noted that the Supreme Court has never in its history invalidated a state supreme court's interpretation of its own constitution. I think that's probably right, but so what? I didn't hear him to say that federal courts can never second-guess a state court's interpretation of its own constitution--and for good reason. Even setting aside Bush v. Gore, there are a number of contexts in which federal courts give less than full Erie deference to state court determinations of state law because state law serves as the predicate for protecting some federal interest or right.

Justice Alito raised a number of them in questioning Katyal. They include: whether prior state law recognized a property interest for purposes of federal due process and takings; whether state law recognized a contract for purposes of the Contracts Clause; and whether a state court decision so departs from ordinary state court practice that it cannot be said to provide an independent and adequate state law ground for purposes of defeating Supreme Court appellate jurisdiction. In any of these contexts, it is possible that a state court interpretation of a state constitutional provision could be sufficiently surprising or otherwise under-protective of the federal interest as to warrant SCOTUS (or in some contexts a lower federal court) in reversing the state court's judgment. And Katyal didn't really contend otherwise, but something close to a 1/2-hour of argument time (his and each of the other advocates) ended up being devoted to this question that everyone agrees is not presented.

The result was not entirely harmless. It is possible to imagine the Court writing an opinion that tries to provide some guidance for the Bush v. Gore question, even though it's not strictly speaking presented. The most conservative Justices seemed especially concerned about the prospect of state courts relying on airy constitutional notions of fairness to invalidate political gerrymanders. Indeed, they suggested that the North Carolina Supreme Court had done just that. Don Verrilli, arguing for the state respondents, pushed back by pointing out how the NCSC had relied on text and history, including the English Bill of Rights. At that point, Justice Alito challenged him by saying, more or less, Oh come on. The English Bill of Rights of 1689 doesn't have anything to say about political gerrymanders. After all, there were rotten boroughs in England well into the 19th century.

Verrilli's response? "That was a bad thing." Well, duh, but that was kind of Alito's point: this "bad thing" persisted notwithstanding the English Bill of Rights, which was therefore never understood to have anything to do with the bad thing of malapportionment.

What should Verrilli have said? Something like this: Until the passage of the UK Human Rights Act in 1998 (and arguably even after), England had parliamentary supremacy, so the persistence of the rotten boroughs tells us nothing about what the English Bill of Rights means; their persistence tells us only that for centuries in England there was no effective mechanism to address the problem of self-dealing that partisan gerrymanders and other efforts to entrench power represent. In this country, thank goodness, we have the mechanism of judicial review in cases like Baker v. Carr at the federal level and cases like the North Carolina Supreme Court decision below. Mic drop.

Why didn't Verrilli say that? I don't know. In substance he got more or less there by framing what the NCSC did by reference to John Hart Ely's conception of representation-reinforcing judicial review, but that was at a different point in the argument. I suspect he didn't give the best available answer with respect to rotten boroughs because he and Alito were in such a hurry to get on with the argument.

Indeed, at various points, both Justice Alito and Justice Gorsuch asked questions and then cut off the answer before the advocate got out even a few words, presumably because they didn't like the answers they were getting. They then declared themselves unsatisfied but moved on before giving the advocate a chance to address the particular source of dissatisfaction.

This sort of rudeness was bipartisan. Justice Sotomayor--as she has sometimes done in other arguments--insisted that an advocate give a yes or no answer to a question with respect to which the advocate's position entailed some nuance, expressing annoyance and accusing the lawyer of inconsistency when he hedged. Justice Jackson (to a lesser extent) also seems to have picked up this penchant for demanding yes-or-no answers. Maybe that approach is effective on cross-examination in a trial (although even then I think it makes the lawyer come across as a bully), but unless an advocate is being outright obstreperous, it's unbecoming in an appellate argument.

There was a whole lot of additional nonsense. At one point Katyal used a metaphor (about legislative history but it's not worth getting into) that involved comparing an ordinary crowd to a giant crowd of the sort one would see at a Lollapalooza festival. Gorsuch had pretty obviously never heard of Lollapalooza but he thought the word was funny and so, channeling his inner five-year-old, he repeated it three times in ways that demonstrated he had no idea why or how Katyal had used it but was very pleased with himself.

All of this boorishness and stupidity was especially galling because it diverted attention from what ought to have been the core of the argument. Justice Sotomayor hit on one aspect of the problem with Thompson's argument when she referred to the "legal morass" entailed by distinguishing substantive from procedural rules, but the case she cited, Mistretta v. United States, makes that point only then to go on and draw the distinction. She would have done better to cite Justice Frankfurter's famous statement in Guaranty Trust v. York: "'substance' and 'procedure' are the same key-words to very different problems. Neither 'substance' nor 'procedure' represents the same invariants. Each implies different variables depending upon the particular problem for which it is used."

The question, in other words, is not whether it is possible to distinguish between substance and procedure. Although the line is fuzzy and requires judgment, it can be drawn. The question is whether it makes sense to draw the distinction in any given context. And as a line of questioning that Justice Jackson tried to initiate a couple of times indicates, here it does not.

The core of the argument against the Independent State Legislature theory is that while Article I, Section 4 of the federal Constitution may assign some tasks to state legislatures in connection with federal elections, those legislatures don't exist in a void; they are created and constrained by their state constitutions. Justice Jackson made an excellent point when she noted that one needs to look to a state constitution even to identify the state legislature. She posited a circumstance in which two rival entities claim to be the state legislature. That's not purely hypothetical. It's what happened in the middle of the 19th century in Rhode Island during the Dorr Rebellion, which gave rise to the SCOTUS non-justiciability ruling in Luther v. Borden. And the problem of competing slates of presidential electors (for real in 1876 and almost for real in 2000 and 2020) is clearly related.

What Justice Jackson was pointing out is that state constitutions set what Matt Adler and I have termed "existence conditions" for legal institutions and law. At the federal level, some of those conditions are procedural. E.g., the lawmaking procedure set forth in Article I, Section 7 is an example of a procedural existence condition. But others are substantive. E.g., for an Act of Congress to be valid, it must fall within at least one of the enumerated powers or be necessary and proper to the carrying out of at least one such power. That's substantive. Even many rights provisions can be (and Adler and I argued are best understood as being) existence conditions.

One need not accept (or even understand!) the Adler/Dorf argument to see that the North Carolina legislature's position faces a very substantial obstacle from the traditional understanding of judicial review in America--which is that a law that violates the constitution is no law, void ab initio. SG Prelogar made this point in colloquy with Justice Jackson. It has as a logical implication that the distinction between substance and procedure shouldn't do much if any work here. I just wish that the relation between the void ab initio feature of constitutional law and the problem with the subsance/procedure distinction had received greater explicit attention. But that would have left less time for nonsense.