Tomorrow, the Supreme Court faces a reckoning: will it find constitutional virtue in a political theory that Donald Trump and his allies used in their failed attempt to overthrow the 2020 election?  How it decides this historic case may well affect its reputation at a time when its popularity is sagging in opinion polls.

The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt

Wednesday’s hearing:  Moore v. Harper   The hearing, beginning at 10 a.m., is scheduled for 90 minutes.

Background:  When the Supreme Court takes up a fundamental constitutional question, it has a two-fold task: decide the specific case that is before it, and pay close attention to how that ruling will affect future, related cases.

The extended hearing set for Wednesday will be focusing on the role that the nation’s state legislatures have, under the Constitution, in deciding how to draw election districts for the 435 seats in the U.S. House of Representatives.  The particular issue is the role of North Carolina’s legislature in creating maps for that state’s 13 House seats.

But clearly looming in the case is the prospect of a sequel over how state legislatures count the votes in the election of a future President.  And that is why the Trump plot for a coup will be very much in the background tomorrow.

At issue is the “independent state legislature” theory.  Already, in a preliminary look at the North Carolina congressional redistricting case, three of the nine Justices suggested they might well endorse the theory.  A fourth expressed keen interest in it.

The theory, basically, is that the Constitution assigns to the state legislatures the authority, with no limit under state laws or state constitutions, to decide how to conduct elections to the House and the Presidency.  It is a theory that has not been applied in any state since 1860, but has recently had a significant revival in political and academic discourse.

It would be a surprise if the Trump coup plot were to be brought up by anyone in tomorrow’s hearing, if only because the underlying constitutional theory is under review only as it applies to the drawing of congressional election districts.  Still, it is hardly beside the point, for at least two reasons: first, anything the Court decides simply cannot be confined to that context, and, second, the likely participation in the hearing by Justice Clarence Thomas will be a constant reminder of how the theory was deployed after the 2020 election.

As of now, there is no indication that Thomas will take himself out of the case and be absent tomorrow.  He does have many critics who have been demanding that he do so because of the role of his wife, Ginni Thomas, following the 2020 election.  She personally pushed the theory in trying to persuade a number of state legislators in key states to cast substitute votes in the Electoral College for Donald Trump, switching them from Joe Biden.  Her efforts failed, but they spotlighted her husband’s role in participating in cases arising out of that election.

Thomas has already given a strong hint of how he views the theory, and he did so in this very case.  Last March, when the case was in a preliminary stage at the Court, before the Court had voted to review the case in full, Thomas joined two of his colleagues in declaring that, based on their view at that time, the state legislators advancing the theory would be “likely” to “prevail on the merits if review were granted.”  That was before full briefing and before any hearing, so that sentiment does not bind them on how they will vote at the end of the process, but it certainly suggests an inclination.

The Wednesday hearing is set for the unusual length of 90 minutes, partly because of the fact that four lawyers will be appearing.  One will speak for the leaders of the state legislature on one side, defending the congressional districting maps, and three on the other side: for the state of North Carolina, for individual voters who successfully challenged the congressional maps under the state constitution, and for the Biden Administration.

The Moore v. Harper case and the theory at stake were examined at length in this space in a series of three articles last month.  Here are links to those articles:

A direct threat to democracy — Part I (lyldenlawnews.com)

A direct threat to democracy — Part II (lyldenlawnews.com)

A direct threat to democracy — Part III (lyldenlawnews.com)

After Wednesday, the Court will have no scheduled hearings until January 9.