“Is Democracy Constitutional” is pretty good clickbait. Atlantic staff writer Adam Serwer does have a specific Supreme Court case in mind and discusses it at length in his piece. But Serwer is pretty sure he knows how the Supreme Court is going to rule, now that it’s been “captured” by the Republican Party. What was it for the past 50 years before it was captured?

Serwer’s concern is the “crank legal premise called the independent-state-legislature theory”:

Every American child in public school learns that the U.S. political system is one of checks and balances, in which the judicial, executive, and legislative branches constrain one another to ensure that no one branch of government exercises too much power. One pending case before the Supreme Court asks: What if they didn’t?

In Moore v. Harper, North Carolina Republicans are arguing that no other state body, including the state supreme court, has the power to restrict the legislature’s ability to set voting rules—specifically ones allowing legislators to gerrymander the state, in defiance of a ruling by the state supreme court finding that their plan violated the state constitutional amendment guaranteeing the right to vote. This belief is based on a crank legal premise called the “independent-state-legislature theory.”

This outcome in Moore v. Harper would not affect state and local contests, but in large part Republicans have already succeeded in election-proofing legislatures in states they control by drawing district lines to favor Republican-leaning constituencies. In closely divided states such as Wisconsin, gerrymandering and geographic polarization mean that the GOP can win some two-thirds of state legislative seats with less than half of the statewide vote.

What’s to happen now that the Democrats can’t rely on the Supreme Court to save them?

Just ask them if Donald Trump stole the election in 2016. Ask Hillary Clinton.

So a Republican president filling vacancies is “capturing” the Supreme Court. What would it be called if President Biden packed the Supreme Court to make liberals the majority? Would that set things back to the way they’re “supposed” to be?

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