The debate surrounding the independent state legislature (ISL) theory, which is at the heart of the U.S. Supreme Court case Moore v. Harper, is ultimately a lopsided one that, under a principled originalist approach, should result in the court rejecting the theory, says Vikram Amar, the dean of the University of Illinois College of Law and a constitutional law scholar and expert on this theory. Amar recently spoke to the Illinois News Bureau about ISL; an excerpt from the interview follows:
If the independent state legislature doctrine is a such a far-fetched legal theory, why did the court accept this case? And should we be concerned that a number of conservative justices – Alito, Gorsuch and Thomas – were interested in hearing more about ISL? Does their interest give this radical theory more credence than it deserves?
ISL theory has been flatly rejected by the court in three or four cases over the last century, most recently in 2015 and 2019. But in the infamous Bush v. Gore case in 2000, three justices seemed to embrace the theory. And in the run-up to the 2020 election, three or four justices again flirted with it.
Importantly, all the cases in which various justices have expressed interest in the theory were so-called “shadow docket,” emergency cases in which normal briefing, oral argument and time for reflection were absent. And these cases certainly did not have the benefit of a great deal of recent scholarship written on the topic.
Read the full interview at news.illinois.edu.