The Coup that Never Was: The Supreme Court Rebuffs “Power Grab” Theory

Below is my column in the Hill on the ruling this week in Moore v. Harper — and the coup that never happened. After months of dire predictions of a coup in the making, the Court overwhelmingly rejected the underlying “independent state legislature,” as some of us predicted. There was little discussion of the prior hysteria or attacks on the integrity of the conservative justices. Political and media pundits will simply move on to the next jump scare item on the docket.

Here is the column:

The fall of American democracy arrived yesterday morning with a thud.

For months, liberal law professors and pundits have filled the media with dire predictions that the Supreme Court was about to carry out a long-planned “coup” and “power grab” — one even wrote that the court could be on the brink of establishing “one-party rule” in the United States.

The dire warnings concerned a hearing of an appeal in Moore v. Harper, in which North Carolina legislators argued that state courts could not override state legislatures on federal election districts. The “independent state legislature” (ISL) theory has never garnered great support among constitutional experts, and many of us stated that we doubted that the Court would embrace the theory.

That did not stop liberal groups from raising the alarms — and more importantly the donations — off the case. Nothing fuels election fundraising like abject fear. Notably, many of the greatest alarmists were also pundits who previously called for packing the Court to install an instant liberal majority … to save democracy, of course.

Harvard Professor Laurence Tribe called for such a radical change after the Republicans won the 2016 election, declaring that “the time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power.”

It does not matter that this term, as in prior terms, a majority of cases have been decided on a unanimous or near-unanimous basis. It does not even matter that the court, with its conservative majority, has delivered repeated victories for the Biden administration, including last week’s 8-1 ruling in favor of President Joe Biden’s immigration policies.

Likewise, it will not matter that the conservative “coup” never came. Chief Justice John Roberts demolished the ISL theory as a barrier to judicial review.

From the prior coverage, one would expect an announcement that the three dissenters in the 6-3 decision — Justices Clarence Thomas, Neil Gorsuch and Samuel Alito — would be granted exile in Belarus after the failed coup. But actually, only Justices Thomas and Gorsuch embraced the theory. Alito only sided with the minority on the grounds that the case should have been thrown out as moot.

It turns out that there were no “right-wing justices making up law to create an outcome of one-party rule,” no “activist, conservative majority … untroubled by violating long-established precedents when they get in the way of achieving its substantive political ends.”

Dennis Aftergut had even warned readers that this was all part of a grand effort of the far right in pumping dark money into the courts: “You don’t need to read the tea leaves to see where the court’s far-right wing wants this to go. Just follow the money,” he wrote.

But the left’s use of dark money does not appear to be as much of a threat to our existence. Critics point to such groups as the Sixteen Thirty Fund, “a nonprofit incubator that provides its tax and legal status to nonprofits, which allows them to avoid filing publicly available tax forms. The Sixteen Thirty Fund is managed by the Washington, D.C.-based consulting firm Arabella Advisors, which oversees a large network that pulled in $715 million in secretive donations for left-wing groups and causes it houses in 2019 alone.”

Demand Justice, headed by former Hillary Clinton aide Brian Fallon, is tied to that dark money group and is leading the charge to pack the court. Fallon once responded to the disclosure of the Clinton campaign funding the infamous Steele Dossier by calling it “money well spent.”

Nothing says democracy like dark money and false conspiracy theories.

In fairness to some of the less bombastic critics, the acceptance of the independent state legislature theory would have produced a radical change in how elections are handled in the United States. However, Moore v. Harper quickly devolved into the latest example of hysteria over a conservative cabal on the court.

The fact is that the independent state legislature theory was based on a good-faith but clearly minority view of the meaning of one line from Article I, Section 4 of the Constitution, referring to the “Manner of holding Elections for Senators and Representatives…prescribed…by the Legislature thereof.”

Many legitimately feared that barring judicial review would invite gerrymandering. Again, however, many of the loudest voices were the least compelling.

The court-sanctioned Marc Elias warned of the conservative plotting around Moore v. Harper but was himself accused of trying to rig elections for the Democrats. Elias, the former general counsel to the Clinton campaign, was a critical figure in pushing the Steele Dossier and false Alfa Bank allegations. He was also accused of lying to the media when asked if the campaign had funded the dossier. Elias was also involved in Democratic gerrymandering efforts and even made his own election machine conspiracy theories.

The grand conspiracy behind Moore v. Harper was explained by Quinta Jurecic in The Atlantic, that “any state-level effort to upend the 2024 presidential election on the basis of … the independent state legislature theory would depend, in part, on the fact that the theory is difficult for laypeople to understand — and therefore open to distortion.”

It was apparently equally difficult for the Supreme Court to understand.

The court will continue to issue some divided opinions along ideological lines. Indeed, we are waiting for cases that are likely to break along those lines this week. These justices hold consistent jurisprudential views that will continue to be manifested in their opinions. However, for every case with six conservatives voting together, there seems to be one with three conservatives voting together in dissent.

The liberal justices are rarely portrayed in the mainstream media as ideological robots or dark-money cutouts. After all, they are viewed as right on the law.

Fear not, however — the next Supreme Court coup conspiracy theory is likely already in the making.

Jonathan Turley is the J.B. & Maurice C. Shapiro Professor of Public Interest Law George Washington University Law School.

139 thoughts on “The Coup that Never Was: The Supreme Court Rebuffs “Power Grab” Theory”

  1. Anonymous

    “No. They had no standing do sue.”
    Again because you say so.

    “You’re confusing suing another state over territorial or commercial disputes with suing a state for not following its own laws.”
    Nope. States can sue each other for any of the above.
    Please find where in the constitution a state is barred from suing.

    The constitution limits the courts to “cases and controversies” – this is a controversy.

    “Texas and other states did not show proof they were being harmed by the other state not following its laws.”
    Actually if a state does not follow its election laws – that is prima fascia proof of harm to other states.

    Just as a state allowing water that flows into another state to be poluted in violation of its laws harms another state.

    Regardless, you do not understand The standards of the law.

    You do not have to PROVE harm to get into court.
    You merely have to allege it.

    You seem to have this idiotic idea that to get into court, you must be able to win the case based on the first brief you file.

    ALL The Trump election claims were improperly discarded for similar ignorant and lawless reasons.

    Courts are requireed to hear cases and contoversies.

    Laches, Mootness, Standing are all means to dismiss cases without hearing them.

    Standing is SPECIFICALLY about not being the correct party to bring the case.

    Whether you like it or not there is no case that can be completely disposed of through standing.
    The courts can reject a case for standing becuase the plaintiff bringing the case is not A plantiff that can credibly allege harm.

    The court can not reject a case on Standing because it does not like the Plantiffs claim of Harm.

    The burden to PROVE Harm is on the plaintiff AT TRIAL.

    We have spent thousands of years getting this right – and you are completely clueless – just making things up as you go.

    “Texas already voted it’s choice.”:
    Not relevant.

    “Pennsylvania’s election laws don’t affect Texas one bit.”
    Of course they do – that is a completely stupid claim.

    What if the PA Courts completely ignored the election and the election laws, and the legislature and appointed the electors of its choosing.

    Wouldn’t that harm voters ?

    Wouldn’t that harm Voters in other States ?

    This country is the UNITED STATES – not the confederation of states. Not some random collection of states that on occasion cooperate.

    The Constitution is a CONTRACT – With the federal Government, the States, and the people as parties to that contract.

    Presumably you have heard of “the social contract” – that is the foundation of legitimate government.

    “Texas would have to argue that Texas wanted Trump to win and Pennsylvania not following its laws would have not provided the outcome they wanted. ”
    No All Texas has to argue is that PA did not follow its own laws and the result harmed other states – I would note 20 States joined texas in suing 6 states for violating their election laws.

    “Problem is Texas already chose who it wanted.”
    Not relevant. All that is relevant regarding TX is that it followed its election laws and the constitution.

    While it is not likely – States that Biden won could have joined the suit.

    The issue is NOT who won. That is not relevant. What is relevant is that by failing to follow its own election laws – in a FEDERAL election,
    PA and 5 other states undermined trust in elections.

    Given that more than 50% og people beleive that the 2020 election was rigged in someway – TX has already proven their case.

    The states that failed to follow their election laws DID undermine Trust in elections and the legitimacy of the resulting government.

    I would further note that The courts – state and Federal that you tout as rejecting election claims – without ever hearing the merits of the case,
    did exactly the same thing – they undermined trust in government, they undermined the legitimacy of govenrment, and they undermined trust in the courts.

    Again – look at the polls ALL of those are at all time lows.

    YOU did that.

    I would further note that these are EXACTLY the conditions that brought about the American Revolution.
    And this is specifically what the Declaration of Independnce uses as justification for going to war with Britain.

    There are clauses in the declaration specifically about the refusal of Crown Governors and Courts to enforce laws passed by State Legislatures.

    You seem to be under this delusion that so long as you can gain power – it does not matter how you do so.
    The ends justifies the means.

    That is both wrong and does not work.

    “It was essentially forcing another state to vote what Texas wanted.”
    The only obligation the 6 states being sued had to TX and all the other states was to follow their own election laws.
    If they had does so – there would be no basis to sue.

    AS is typical of left wing nuts – you think the law is about outcomes.

    It is not. It is irrelevant – both to this suit and overall Who TX or anyone else WANTS to win.
    What is relevant is were the election laws followed in a FEDERAL election.

    TX has no right to Sue PA over the election of STATE Senators, or Representatives, or Governors.
    Regardless of whether PA follows its own laws or not.

    When the Impact of PA’s lawlessness remains entirely within PA’s borders – no one outside of PA has standing to sue.

    But when the Impact – such as in the election of Senators, and Federal Representatives, and Presidents, is FEDERAL
    rather than solely within the state – then the states by defintion have standing.

    Regardless, you have an even bigger problem.

    Very very very few people are arguing that these states followed their own election laws.
    PA was the most egregious example. But NO state followed its Voter ID laws for mailin ballots. No State followed its signature matching laws.
    Nor did any one of these 6 states follow their state constitutional requirement for Secret Ballot elections – which require in person voting at a government polling place in private and only on election day.
    And this is just a subset of the issues. In many cases – such as Wisconsin the WI supreme court MULTIPLE times found the state violated State election laws and the state constitution. But they chose not to impose a remedy.

    “They had no standing to sue.”
    Again – because you say so ?

    You still do not seem to understand what Standing is.

    Lets make this really simple – it is a GIVEN that states did not follow their own laws and constitution. Only a few dingbat lefties refuse to concede that.

    That alone means SOME PARTY – and possibly MULTIPLE parties have standing to sue.

    Yet, NOWHERE was there as single hearing on the merits. Nowhere was their a trial, Nowhere was their discovery.

    You can claim – incorrectly that Trump had no standing., or that PA citizens had no standing, or that Other States had not standing.

    But given that it is VERY CREDIBLY alleged that the law was not followed SOMEONE had standing.

    Anytime Standing prevents EVERYONE from suing – the courts by definition have ERRED.

    Standing is NOT about the quality of the claim. That MST be assumed in evaluatiing standing.

    Standing is about whether this particular plaintiff is suited to make the claim. That is all.

    “You’re the one who doesn’t seem to understand how standing works.”

    Look in the mirror.

    Standing is not a question of did misconduct occur – that must be presumed when evaluating Standing. Standing is about Who is allowed do make the claim in court.

  2. Great idea Jonathan, let damned ROBED BANDITS decide elections, that is why we got a stolen Election in 2020, he is the thing, YOU KNOW they stole, but you are too big a coward to admit it. We live in a Banana Republic, go ahead, praise thee JUDGES, they are the cowards allowing Election theft.

  3. Thanks to Roymond for the suggestion: “Read Hans A. von Spakovsky’s excellent analysis in the Daily Signal”
    I did that.
    What is clear is the judiciary just voted themselves more power over the state legislatures, and all their underlings at state’s judicial.
    Big surprise huh. POWER POWER POWER POWER POWER.
    So once again our elected representatives have power ripped from their hands.
    All the judges and lawyers love it, more lawsuits, more money, more power. Less Constitution.
    Another end run around and over the Constitution’s text.

    1. Yes, there was no coup. No, the Supremes did not follow the Constitution. They persisted in the Marshall tradition of arrogating to the judiciary powers not granted by the founders, and – in so doing – utterly perverted the plain language and intent of the document. This is in keeping with the “co-equal branches of government” balderdash that has flourished since Marbury v. Madison, and against which Congress has, for various reasons, exercised no remedy despite the presence of that remedy within the text of the Constitution. It takes years in law school learning to count angels on pinheads to become so obtuse.

  4. So poorly thought through, Jonathan, and so poorly written – gosh Jonathan I expect better than this.

    1. When power is accrued unto oneself and one’s profession with your closest peers, not a lot of thought is required.
      The big problem is under Covid the courts and some state officials went insane with usurping power in elections and by fiat declared a bunch of new demoncrat laws and rules for elections and they got away with it.
      Now, since the illegal federal tyranny decided it was the safest and mostest fair election ever and shrieked that for years, calling out the criminal courts in a “self check” would literally be a blessing for Trump and horrify the demonatti, thus that must not happen.
      Screw the Constitution, we got orange man bad to combat.

  5. The only conclusion you can come to is that Democrats are the enemy of everything we hold dear.
    Anyone who is a Democrat is your enemy.
    They want to hurt you and your family
    Destroy your country

  6. And . . . drum roll for tomorrow’s article on the affirmative action case, and hundreds of comments . . .

  7. Professor Turley, I find it strange that SCOTUS determined that the U. S. Constitution is “unconstitutional”. Federal Judicial oversight is appropriate but partisan, political State Judicial oversight, and over-ruling, does not conform with the Elections Clause of the U. S. Constitution. Read Hans A. von Spakovsky’s excellent analysis in the Daily Signal and provide your analysis.

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