The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Goodbye Roberts Brief. Hello Barrett Brief.

Critics of the Independent State Legislature doctrine may as well put Justice Barrett's face on the cover of their briefs.


For what felt like an eternity, advocates (present company included) would write briefs directed at Justice Kennedy, the swing vote. Erwin Chemerinsky would joke that he would put Kennedy's phot on the cover the brief, if he could. The so-called Kennedy briefs would discuss concepts such as federalism, dignity, and other related balancing tests.

After Justice Kennedy's retirement, we said goodbye to the Kennedy briefs, and advocates pivoted to the Roberts Briefs. Those filings would focus on the Court's institutional role, and preserving some semblance of the separation of powers. Alas, the Roberts Briefs had a brief shelf life. With Justice Ginsburg's passing, the Chief was no longer the fifth vote. Instead, briefs would target the other two getable votes: Justices Kavanaugh and Barrett.

At present, the most obvious Barrett briefs focus on the independent state legislature (ISL) doctrine. Consider Rick Hasen's posting on tonight's ruling from North Carolina:

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts' dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito's position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There's a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.

You get that? ACB can only agree with Justice Alito, and rule in favor of the ISL, if she ignores the Constitution's original meaning. Under the Constitution's original meaning, the maps drawn by the NC Supreme Court should stand. And advocates can put Barrett's face on the cover.