This fall, the Supreme Court of the United States will hear a case about who gets the final say over state laws regarding federal election procedures: a state's courts or its legislature.
Moore v. Harper has potentially monumental effects if the court accepts this so-called "independent state legislature theory." The Conference of Chief Justices, an organization of the country’s top jurists, filed an amicus brief advising the Supreme Court to reject the theory and keep the final say with state courts. However, we know that several Supreme Court members have expressed openness to overturning the precedent.
Retired federal judge Nancy Gertner joined Boston Public Radio to discuss potential impacts of the case.
“If the Supreme Court sides with the argument that the state legislatures are the last word, then many of the battleground states — which have overwhelmingly Republican state legislatures — will be given free reign to make whatever restrictions," she explained.
“The theory about the state legislature being supreme over other branches of state government is literally a theory that ... no respectable scholar supports," she added. "And it's also a theory that it really belies … 250 years of history.”
Gertner also shared her analysis on other pressing legal issues facing the country, including the possibility of former President Donald Trump’s indictment.
Trump is facing a slew of legal troubles, including a civil fraud case from New York’s Attorney General, continuing Jan. 6 investigations, and the Department of Justice’s investigation into his mishandling of classified documents.
Gertner maintained that prosecution and conviction will be critical in making a statement about what kind of actions are right and wrong.
"The question is paying the price, being prosecuted and convicted, announcing that that is wrong, I think is critical.”
However, in terms of sentencing, she believes that it will be up to the judge in question to consider what kind of political impact it might have on the country, explaining that the answer may not be black and white.
“The determiner of what he should get would be whoever the sentencing judge is, the then president would decide whether to commute the sentence or to pardon him, which is a little bit of a blunt instrument. So, I think that any judge in this situation would have to think about the good of the country, would have to treat this as a unique case," she explained.
“I don't know where I stand on that as far as sort of ripping the country apart. We're already there. … This is so multifaceted and has so many fronts that are already ripping the country apart. And we have to follow through because someone somewhere has to say, 'This is just wrong, flat out wrong.' And criminal courts don't do it.”
Judge Gertner also commented on the recent decision by the Justice Department to end the prosecution and drop the charges of Judge Shelley Joseph, who in 2018 was charged with obstructing justice when she allegedly aided an undocumented immigrant in her courtroom in escaping from an Immigrations and Customs Enforcement officer waiting for him in the lobby.
However, the prosecution has been criticized as being an attack on the courts’ independence, and as an overstepping of federal enforcement. Gertner said the issue should not fall under federal jurisdiction.
“The question is the symbolism of indicting a state judge for a decision she made in her courtroom rather than treating it as a disciplinary issue," Gertner said. "What was more important was the symbolism of getting tough on judges in the sanctuary community. … What a judge does in the four corners of her courtroom, in good faith, it should not be something that the feds can charge as a crime.”
