Noah Feldman, Columnist

A Conservative Theory Too Extreme Even for This Supreme Court

The argument at the core of Moore v. Harper, so-called independent state legislature theory, is both unhinged and dangerous.

December 8, 2022 at 11:30 AM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

People wait in line outside the US Supreme Court to hear oral arguments in the Moore v. Harper case on December 7, 2022. — People wait in line outside the US Supreme Court to hear oral arguments in the Moore v. Harper case on December 7, 2022.
Photographer: Drew Angerer/Getty Images

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This Supreme Court hasn’t exactly been shy about issuing extremely conservative rulings. Even so, one pending case stands out for its combination of dangerous and unhinged. That case is Moore v. Harper, and involves the so-called independent state legislature theory. The bad news is that Wednesday’s oral argument underscored how outrageous the argument for it is. The good (or at least, less-bad) news is that it seems most of the justices want to reject it.

The independent state legislature theory is the product of an opportunistic, hyper-literal interpretation of the US Constitution. According to Article I, section 4 of the US Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The theory asserts that this means a state legislature can violate its state’s constitution in congressional elections, and that the state’s supreme court may not stand in the way because the legislature must have the final word.