“Quite Literally, Our Job”: Moore v. Harper and the Fragility of Judicial Federalism

The Supreme Court’s decision in Moore v. Harper categorically rejected sweeping claims by proponents of the independent state legislature theory (ISLT) that would have eliminated the historical role of judicial review by state courts in election law cases concerning federal elections. Yet, the Court added a cryptic caveat to the end of the opinion, noting that state courts must remain within the bounds of “ordinary judicial review” (OJR). This Essay will review what state courts have said about Moore since the case was decided. It will also explore how advocates of the ISLT have attempted in these cases to equate OJR with a generic version of judicial activism. This Essay argues that claims about so-called activism and restraint are utterly common in state court litigation and cannot coherently mark the boundaries of what is ordinary. It argues that this reading of OJR is not only conceptually problematic and incompatible with judicial federalism, but opens the door to relitigating Moore in ways inconsistent with the decision’s strong affirmation of judicial review by state courts.