Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish

Abstract

The biggest news of October Term 2020 was what didn’t happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore opinions of twenty years ago. But a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once again—as it did in 2000—besmirch itself and plunge the country into a jurisprudential abyss. In the days preceding the election of 2020, a veritable carnival of litigants—let’s call them Bush-Leaguers—teed up several cases based on a seemingly plausible but ultimately preposterous constitutional