Don't Be Surprised by Moore v. Harper

The Federalist Society justices are not political partisans; they are interest group partisans.

Today, the Supreme Court handed down a ruling in Moore v. Harper that surprised only those who insist on believing that the majority is doing the bidding of the Republican Party. We don’t have a “conservative” majority on the Supreme Court; we have a Federalist Society majority of six justices who are all members of that group, and who were only nominated by Republican presidents after being vetted by that group. We should think of the Federalist Society majority not necessarily as agents of the Republican Party, but as agents of the sponsors and corporate interests who created and continue to fund the Federalist Society, the Republican Party, and the Super PACs that support Republican candidates. 

The Federalist Society justices are not political partisans; they are interest group partisans. As I wrote six months ago (see below), this outcome was the most likely one in light of how SCOTUS summarily rejected Trump’s suits after the election. In both situations, when asked to choose between corporate power and Trump/MAGA power, the Federalist Society majority chose the former. Indeed, in the wake of attacks like those DeSantis has made on Disney, as well as other attacks on “woke” corporations, it’s likely that those interests are in no mood to give more power to the Marjorie Taylor Greene-style MAGA politicians in state legislatures. 

Many are celebrating the Court’s refusal to validate the absurd “independent state legislature” theory that could have allowed MAGA-dominated state legislatures to overturn federal election results. Unfortunately, these celebrations overlook that the decision further normalizes the idea of SCOTUS interventions in elections. As Adam Liptak reported in the New York Times in 2013, this is Roberts’ classic incremental approach – hold back from the worst to engage the “liberal” justices in rulings that set the stage for more respectable rulings later. 

In 2000, it shocked the legal community when SCOTUS took Bush v. Gore. In this decision, the Federalist Society justices announce to anyone ready to listen that they will be back again if needed to substitute their preferences for voters’. 

Furthermore, on the tenth anniversary of Shelby, not only should we not be celebrating, we should again be lifting up the still-unacknowledged coup underway. As I’ve written before, the Federalist Society majority is key to a revanchist plot to repeal the social and economic progress of the 20th century. If we forget that, and if we take positive rulings like Moore as a sign that the Court may not be completely irredeemable as an institution, we are allowing ourselves to be gaslit.

Moore v. Harper and the Emerging Divisions in the Revanchist Coalition

The following was originally published on December 18, 2022 in my pre-Substack newsletter.

The oral arguments in Moore v. Harper surprised some in that there did not seem to be even five votes for the worst case position – the jettisoning of all state supreme court oversight of state legislatures. I believe that to be another sign of an emerging fault line between the two factions within the revanchist coalition against the 20th century.

One faction consists of MAGA white Christian nationalists who seek to reverse the progress in civil and human rights made in the last half of the 20th century. The other faction consists of the capitalists who seek to reverse the New Deal economic order. As I’ve written in several contexts, MAGA presents the previously dominant capitalist faction of the Republican Party with a “dog catches the car” problem. I would argue that the arguments inMoore– as well as who was making them – indicated a growing discomfort within the capitalist wing about the MAGA faction’s latest gains, which now include a hold on many state legislatures and the U.S. House of Representatives. 

The emergence of this fault line can be seen in other ways as well, including campaign contributions. Incredibly, we don’t see coverage of this in the mainstream media, even though the Open Secrets website makes it straightforward to track the contributions by eleven industries since 1990. I’ve divided them into three categories: 

• Always Blue. Communications/Electronics and Lawyers and Lobbyists have always given a majority of their contributions to Democrats. 

• Always Red. Agribusiness, Construction, Energy/Natural Resources and Transportation have always given a majority of their contributions to Republicans.

• Moving Blue. These industries gave a majority of their contributions to Republicans until 2012, and have been giving an increasing share of their contributions to Democrats since then. The industries in this group are Defense, Finance/Insurance/Real Estate, Health and Other. 

As you see, significant sectors of the economy are moving in opposite partisan directions in reaction to MAGA’s growing power within the Republican coalition. 

Given the increasing aggressiveness of Red State politicians like Ron DeSantis, Marco Rubio, and Josh Hawley among others to take on “woke capitalism,” it seems fairly plain that we should expect increasing resistance to them and their MAGA ilk from the sectors that have been moving Blue since 2010. 

Among the most interesting things to note in passing is the health industry’s Blue shift. From Clinton to Obama, Democrats averaged 41 percent of health industry contributions. But since Obamacare, Democrats have averaged 53 percent of their contributions, growing to 61 percent in 2022, clarifying the health industry’s satisfaction with the current health regime, and perhaps shedding more light on Roberts’ decision in NFIB v. Sebelius. 

All of which is to say that, should the eventual Moore decision fall short of our worst fears, we should credit neither the strength of our legal arguments nor our canny strategy. We should certainly not emulate those who just celebrated the midterms as a victory for democracy, since those who were complicit in the criminal conspiracy to overthrow the legitimate government in 2020 took control of the House of Representatives in elections conducted under laws passed by gerrymandered MAGA state legislatures to make it more difficult for millions of people of color to vote and less likely that their votes would count, all while giving partisan election officials more unchecked power.  

These many offenses against democracy were made possible by a Federalist Society majority on the Supreme Court which dismantled the Voting Rights Act, opened the floodgates to billionaires’ campaign spending, and greenlighted the egregious partisan gerrymandering that enabled Republican line drawers to keep all but one of 90 of their number who voted against certifying the results from running in a remotely competitive district. The one who did have to run in a competitive district, Steve Chabot, lost. We must stop normalizing those decisions by treating each election as if it were as free and fair as the ones before those decisions; “democracy advocates” do MAGA’s work for them when they grandfather those injustices. Monty Python explained this problem brilliantly here – every time the Federalist Society justices hack off another limb of democracy, we keep insisting ‘tis but a scratch and move on.