The Volokh Conspiracy

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


The Independent State Judiciary Doctrine


The discourse about Moore v. Harper has proven predictable. We're told that the independent state legislature doctrine, whatever it is, doesn't actually exist! Much like the Second Amendment, the Non-Delegation Doctrine, and Sovereign Immunity, every conservative legal doctrine is really a fiction. Meanwhile progressive doctrines that do not really exist–a right to privacy, separation of church and state, and Bivens–must be preserved for the sake of legitamacisis. (I've merged legitimacy and stare decisis to save time.)

If the Petitioners in Moore are advocating for the independent state legislature doctrine, what are the respondents advocating for? I call it the independent state judiciary doctrine. In short, elected members of the state courts will have the final say over election law, without U.S. Supreme Court review.

I am not particularly surprised by the outpouring of support for respondents in Moore. The independent state judiciary doctrine is entirely consistent with notions of judicial supremacy. And not the newfangled conservative judicial supremacy where the people get to decide the abortion question. Rather, the independent state judiciary doctrine is consistent with old school, Warren-Court era judicial supremacy. That is, the courts can do whatever they think best to promote fairness. Even the most capacious provisions of the state constitution, drafted more than two centuries ago, can be used to invalidate legislative maps. Really, we have gone full circle from Justice Brennan's admonition that the state courts should be bulwarks of liberalism. But with the independent state judiciary doctrine, the elected legislature is helpless to change course.