Supreme Court Review

Article Title

Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish


The biggest news of October Term 2020 was what didn’t happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore1 opinions of twenty years ago.

But a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once again—as it did in 2000—besmirch itself and plunge the country into a jurisprudential abyss.

In the days preceding the election of 2020, a veritable carnival of litigants—let’s call them Bush-Leaguers—teed up several cases based on a seemingly plausible but ultimately preposterous constitutional theory that had won the support of three notable justices back in 2000. Echoing the Rehnquist-Scalia-Thomas concurrence in Bush v. Gore, the 2020 Bush-Leaguers correctly noted that Article II permits each state to use its “legislature” to decide how that state’s presidential electors are to be chosen. From this correct starting point, Bush-Leaguers quickly careened off course, claiming that state courts could not properly tweak state voting laws to bring these laws into alignment with state constitutions (as construed by these state-court jurists). Perilously, four justices at various points in the autumn of 2020 appeared to fall for this beguiling Bush-League idea—an idea often referred to as the “Independent State Legislature” (ISL) theory. None of the other five justices came close to explaining all the reasons—and there are several—why this theory fails.

In what follows, we show why Bush-League arguments were wrong twenty years ago; how they were shown to be wrong by sound scholarship in the ensuing years; and why they are even more wrong today, thanks to recent and dispositive Supreme Court case law. All sensible constitutionalists—whether on the Court or off it, whether originalists or precedentalists, whether left or right of center—should bury Bush.

We also aim to demonstrate that the errors and evils of Bush v. Gore went far beyond the ISL ideas at the heart of the Rehnquist-Scalia-Thomas concurrence. Bush was wrong in just about every way that it is possible for a case to be wrong. If ever there were a bad seed, Bush was it. The recent efforts to revive and rehabilitate Bush’s reputation are thus genuine cause for jurisprudential concern—even alarm. We urge today’s Court to make a sharp and clean break with Bush as soon as possible, and to do so well before the next contested presidential election, which may be quite harrowing enough without any monkey business from the Court.

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