The “Bounds” of Moore: Pluralism and State Judicial Review
Document Type
Article
Publication Date
3-29-2024
Abstract
In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democracy.
Publication Title
Yale Law Journal Forum
Repository Citation
Shaw, Kate and Litman, Leah M., "The “Bounds” of Moore: Pluralism and State Judicial Review" (2024). Articles. 398.
https://scholarship.law.upenn.edu/faculty_articles/398