It felt as if it took forever for advocates to write briefs to Justice Kennedy. Erwin Chemerinsky joked that Kennedy’s photo would be on the brief cover. So-called Kennedy briefs would be used to discuss concepts such federalism, dignity and related balancing test.
Following Justice Kennedy’s retirement we said farewell to Kennedy Briefs and advocate pivoted to Roberts Briefs. That filing would be focused on the Court’s institution role while preserving some sense of the separation. Unfortunately, Roberts Briefs only had a very short shelf life. The Chief no longer was the fifth vote after Justice Ginsburg died. Briefs will instead be directed at Justices Kavanaugh or Barrett.
The most prominent Barrett briefs currently focus on the doctrine of the independent state legislature (ISL). Take a look at Rick Hasen’s post on the North Carolina ruling tonight.
J. Kavanaugh may ultimately agree with Alito’s reasoning. It will only take one Justice for the two-century long tradition of interpretation of state elections law by state courts to be overturned. The Chief Justice Roberts’ disagreement in Arizona Redistricting Case from 2015 placed him in complete sympathy with Alito on the merits. He might deny for prudential reasons but who knows. Justice Amy Coney Barrett’s position on redistricting is still a mystery as she hasn’t commented. The main action will be to build a solid record based on originalist-style scholarship that shows the independence state legislature theory is not consistent with the Constitution’s original meaning. It is possible to make a compelling case, and this will be the first test to determine how serious Justice Barrett takes historical arguments.
That’s right. ACB will only be able to rule for the ISL if Barrett ignores the Constitution’s original meaning. Advocates may also cover Barrett’s image.