On the Volokh Conspiracy, law professor Steven Calabresi purports to respond to my critique of his Wall Street Journal op-ed on Moore v. Harper. But it would be charitable to call his response head-scratching.
Calabresi does not in fact engage any of the points I made. He instead ludicrously contends that I am “arguing that a State Legislature is only the State House of Representatives and the State Senate and nothing more.” He also asserts: “In Bush v. Gore (2000), Justice Scalia famously argued that that was what the Presidential Electors Clause meant.”
As the title of my post (“Unpersuaded by Steven Calabresi on Moore v. Harper”) indicates, I did not argue that Calabresi’s bottom-line position is wrong. “Perhaps Calabresi is right” on that bottom-line position, I wrote. I instead explained why “I’m not persuaded by his argument.”
As the first sentence of my post states, my three-part series on Moore v. Harper (part 1, part 2, and part 3) “inconclusively addressed” the legal issues in the case. I have certainly never “argu[ed] that a State Legislature is only the State House of Representatives and the State Senate and nothing more.”
Indeed, I’m not aware of anyone who has made that argument. The petitioners in Moore v. Harper certainly don’t. Their position is what the Court said in Hawke v. Smith (1920) and what Chief Justice Roberts reiterated in his dissent in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015): the “Legislature” of a state is “the representative body which makes the laws of the people.” That “representative body” is established by the state constitution, and it need not be bicameral, and it may be subject to a governor’s veto. But petitioners argue—invoking among other things the Court’s precedent in Leser v. Garnett (1922)— that it does not follow that the state constitution can impose substantive limits on how the legislature carries out a federal function assigned to it under the federal Constitution. Perhaps petitioners are right, perhaps they’re not, but they’re not making the argument that Calabresi wrongly imputes to me.
Justice Scalia also did not “famously argue[] that” in Bush v. Gore. Scalia did not write anything in Bush v. Gore, and the concurrence of Chief Justice Rehnquist that he signed onto makes the very different argument that “a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” It’s entirely sensible to read that argument as applying as well to a significant departure from the legislative scheme for congressional districting under the Elections Clause, and that’s an argument that received a lot of attention from the justices at oral argument yesterday. But it’s not remotely what Calabresi attributes to Scalia.
As I outlined in point 11 of my part 2 post, petitioners rely for their very different argument on the Court’s unanimous opinion in McPherson v. Blacker (1892) and its per curiam ruling, without any registered dissent, in Bush v. Palm Beach County Canvassing Board (2000), which preceded Bush v. Gore.
There is a lot else that is wrong with Calabresi’s response, but I’ll limit myself to one additional point. Even though none of my previous posts on the case mentions Scalia, Calabresi for some reason labels me “the guardian of former Justice Scalia’s legacy.” I’d be inclined to take that for a compliment if he weren’t simultaneously condemning “Ed Whelan’s and Scalia’s literal, acontextual, textualism.” [Mistaken punctuation in original.] I certainly do not claim to be the guardian of Scalia’s legacy, but I am happy to defend Scalia against mistaken attacks, even—or perhaps especially—when they come from a former law clerk of his such as Calabresi.