over the dissenters’ temerity to claim that the six-justice majority crossed the line from legitimate application of judicial principles to a judicial power grab is more than a bit ironic. Just three days earlier in
, Roberts wrote another majority opinion that sets up the Supreme Court and other federal courts to routinely ask whether state courts are crossing the exact same line in the most sensitive of political cases. Roberts’ reaction inshould have told him that this exercise of judicial legitimacy line-drawing in high-profile cases is folly and will lead to even greater polarization over the judiciary.
, such a rule would serve to penalize interpretations of state constitutional provisions that protect voters that reach state courts for the first time.Or maybe the Supreme Court would see a state Supreme Court as “arrogating” power vested in legislatures if the state court embraces a living constitutionalism, reading state constitutional provisions as malleable adapting to present values.
has put itself in a position to second-guess the legitimacy of interpretation by state courts, just as the dissenters did to the majority in thewill be even worse, because these cases necessarily involve disputes over elections, some taking place while an election is ongoing or has just occurred. In the worst case,Advertisement
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