The Volokh Conspiracy

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

Noah Feldman is Haunted By Justice Scalia's Vote in Bush v. Gore

Scalia joined Rehnquist's Bush v. Gore concurrence, which introduced the Independent State Legislature Doctrine.


I have long admired Noah Feldman as a sober arbiter of constitutional law. Recently, however, his writings have been littered with elemental mistakes and salacious speculations. Continuing the trend, Feldman's latest column left me scratching my head.

It is titled, "Scalia's Ghost Is Haunting Conservative Justices." The subhead is "The late Supreme Court giant united his philosophical heirs behind theories of originalism and textualism. Now those ideas are becoming a source of conflict." The thrust of the piece is that there is some tension between textualism and originalism, and the Court's conservatives are apparently dividing over that tension.

In a sense, textualism is a form of anti-originalism. It stands for the idea that, to understand a law, you shouldn't ask what the legislature meant to say or what the law's purpose is. You should just look at what the law says. Textualists usually insist they aren't literalists, following the words to absurd conclusions. But the embarrassing truth is that they have no convincing theory of how to avoid following the words literally, because they can't rely on intent or purpose to say what result is absurd and what result isn't.

I've been studying originalism and textualism for some time. I have no idea what Feldman is talking about.

The hook of the column concerns the independent state legislature doctrine. And he posits that in Moore v. Harper, Justices Thomas, Alito, and Gorsuch departed from Justice Scalia's jurisprudence.

Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That's scary because it could eventually block even state courts from stopping partisan cheating.

What's most important about the issue, however, isn't the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It's the new kind of reasoning that the conservatives are using to reach their preferred result.

It's a legal theory that departs from the method of constitutional interpretation favored by a generation of conservative legal thinkers, originalism. That's the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution.

And, of course, Feldman offers heaps of praise on Justice Barrett who did not join her "radical" colleagues.

Justice Amy Coney Barrett's silence hints that she may turn out to be the truest Scalian on the court: textualist in statutes but originalist in constitutional law. You can be sure she looked at the historical evidence before deciding to vote against hearing the case. And it is overwhelmingly likely she saw that the evidence did not support the Alito position. A former law clerk to Scalia, she didn't want to commit the fallacy of being a textualist in a constitutional case.

Feldman continues to try to spin the Court's more moderate members. (Narrator: It won't work.)

Mentioned nowhere in Feldman's column is an important fact:  Justice Scalia, as well as Justice Thomas, joined Chief Justice Rehnquist's concurrence in Bush v. Gore. This opinion was the fountainhead of the independent state legislature doctrine. Rehnquist wrote:

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, § 4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, § 1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Feldman wrote a 1,900 word column arguing that Scalia would have rejected the independent state legislature doctrine, but did not mention that Scalia joined the opinion that endorsed that doctrine. Justice Alito's concurrence cited Bush v. Gore as the original case in a string cite!

This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of astate court's authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasionto address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist,

C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring).

Of course, the Rehnquist opinion didn't spell out its reasoning in any length. And there are differences between the Bush v. Gore concurrence, which involved presidential elections, and Moore v. Harper, which involved congressional elections. But the basic legal question remains: what is the "Legislature" for purposes of the Elections Clause?

Perhaps the one salient point of this column is to stress how important Justice Scalia remains to our constitutional discourse. Most Justices leave the bench and their precedents fade quickly. Indeed, Randy and I are in the process of removing cases for the 2nd Edition of our 100 cases book. The constitutional canon continually adjusts. But what remains is a Justice's contributions to jurisprudence. Decisions about particular controversies fade, but approaches to thinking about the law remain.