The New Yorker: The Conservative Stalwart Challenging the Far-Right Legal Theory That Could Subvert American Democracy

A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a brief today that included a surprising new signatory: J. Michael Luttig, who has been known for years as perhaps the most conservative Republican judge in the country. Now, though, he has joined a coalition of veteran lawyers and nonpartisan government-watchdog groups who are fighting against a far-right Republican election-law challenge—one so radical that critics say it has the potential to end American democracy as we know it.

The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator. 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. The case is scheduled to be heard by the Court on December 7th. Luttig told me that he signed on as Katyal’s co-counsel because he regards Moore v. Harper as “without question the most significant case in the history of our nation for American democracy.” Putting it more colloquially, he said, “Legally, it’s the whole ballgame.” …

“The independent-state-legislature theory was the centerpiece of the former President’s effort to overturn the 2020 election,” Luttig told me. “In advising Vice-President Pence on January 6th, I concluded that there was no such doctrine of constitutional interpretation.” Luttig 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.” In fact, Luttig said, the theory is “antithetical to the Framers’ intent, the text, and the Constitution’s fundamental design and architecture.” …

Luttig, undeterred, praised his new legal bedfellows. “I’m honored to be co-counsel representing Common Cause in Moore v. Harper,” he told me. He described Katyal as a “dear friend,” and “one of the very finest Supreme Court advocates and originalist constitutional scholars in the country today.” As for the case, Luttig 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.”