Former President Donald Trump has been a private citizen for a little more than a month, but the Supreme Court just officially denied his final effort to overturn the 2020 election — although it did so over the protests of three justices.
Additionally, the Court announced that it will not prevent Manhattan District Attorney Cyrus Vance Jr. from obtaining Trump’s tax records, as part of a longstanding criminal investigation into Trump’s businesses.
The Court’s decision not to intervene in this case about Trump’s financial records, Trump v. Vance, is not surprising. In that case, Trump’s lawyers argued that the former president was entitled to absolutely sweeping immunity from criminal investigation while in office — at one point claiming that a sitting president cannot be the subject of a criminal probe if he shoots someone on a public street. But the Supreme Court already rejected this sweeping immunity argument once, in a decision handed down last July. And Trump is no longer the sitting president, so his already weak arguments are now even weaker.
The Court also announced that it will not hear two consolidated election cases on Monday, and its decision not to hear those cases, Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party, is also not surprising. The cases ask whether a small number of Pennsylvania absentee ballots that arrived after Election Day should be counted. But, because these ballots will not change the result of any federal election even if they are tossed out, the two Pennsylvania cases are moot.
What is surprising is that three justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — all voted to hear these two Pennsylvania cases. As explained below, these three justices’ votes show that the Court’s right flank is champing at the bit to dismantle one of the foundational premises of American election law.
The immediate impact of the Court’s decision not to hear the two Pennsylvania cases is that Trump and the Republican Party’s efforts to overturn the results of the 2020 election will not receive a hearing in the Supreme Court — and they appear to be dead. But the three dissenting votes in these Pennsylvania cases suggest that a larger battle over who gets to set the rules for American elections is very much alive.
The “independent state legislature” doctrine, briefly explained
The Pennsylvania cases both involve something known as the “independent state legislature” doctrine, a doctrine that the Supreme Court has repeatedly rejected at multiple points throughout its history, but that is now embraced by at least four members of the Court’s Republican majority.
The Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct.”
Proponents of the independent state legislature doctrine claim that the word “legislature,” when used in this context, must refer to the legislative branch of government within a state — and thus the state’s judiciary and the state’s executive branch are both forbidden to shape the rules governing federal elections within a state. As Justice Neil Gorsuch wrote in an opinion last fall, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
There are many problems with this interpretation of the Constitution, however. One of them is that the Court has…