Prominent conservative judge joins battle against Republicans in momentous Supreme Court case
Retired judge and and informal advisor to Vice President Mike Pence, J. Michael Luttig, testifies during the third hearing of the US House Select Committee to Investigate the January 6 Attack on the US Capitol. (Mandel Ngan/AFP)

The New Yorker's Jane Mayer revealed that there is a conservative braving a legal battle against right-wing groups who are challenging election law. The publication described the case as "momentous."

Judge Michael Luttig, who previously testified to the House Select Committee investigating the Jan. 6 attack, joined a case being heard at the Supreme Court in December.

Moore v. Harper is a lawsuit about the so-called “Independent State Legislature Theory," which would give power to state legislatures to decide elections.

"The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator." said the report. "Katyal is a counsel of record in the case for several respondents opposing the far-right groups, including Common Cause and the North Carolina League of Conservation Voters."

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Luttig told the New Yorker he sees Moore v. Harper as “without question the most significant case in the history of our nation for American democracy. Legally, it’s the whole ballgame.”

Luttig has a long history with Justice Clarence Thomas, who had Luttig personally managing his Supreme Court confirmation hearing. He also has a relationship with Chief Justice John Roberts, who worked with Luttig in Ronald Reagan's administration.

Luttig was approached on Jan. 4, 2021 by Vice President Mike Pence, who was being pressured by Donald Trump to challenge the election on Jan. 6 and send the decision back to the state legislatures to decide the result. Luttig told Pence it was only a ceremonial position and all he could do is certify the vote.

“The independent-state-legislature theory was the centerpiece of the former President’s effort to overturn the 2020 election,” Luttig told the New Yorker. “In advising Vice-President Pence on January 6th, I concluded that there was no such doctrine of constitutional interpretation.”

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He added: “From that day, I have believed I had an obligation to the country to explain the reasons for that conclusion. Namely, there is literally no support at all in the Constitution.” He called the theory “antithetical to the Framers’ intent, the text, and the Constitution’s fundamental design and architecture.”

The theory comes from three judges in the Bush v. Gore decision in 2000, wrote Mayer last year.

"Proponents of the far-right theory claim that state legislatures, which are among the country’s most disproportionately partisan bodies, have nearly unchecked power to gerrymander districts, and to choose their state’s electors in Presidential elections," Mayer explained. "Advocates of the theory argue that neither the state courts nor the state constitutions have the power to rein in the state legislatures. If a state legislature deems a Presidential election flawed, they have the right to unilaterally overturn the popular vote in the state and award its Electoral College votes to the candidate of their choice. If the Supreme Court were to fully embrace the most radical form of the independent-state-legislature theory, it would shift nearly unchecked power over federal elections to partisan majorities in the state legislatures. Ultimately, only the Supreme Court would be in the position to judge whether such legislative power grabs were legal."

“I’m honored to be co-counsel representing Common Cause in Moore v. Harper,” said Luttig calling Katyal a "dear friend" and “one of the very finest Supreme Court advocates and originalist constitutional scholars in the country today.”

He also said: “Common Cause and the other respondents are not only on the side of the Constitution of the United States—they are also on the side of the angels.”

Read the full report at the New Yorker.

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