Justice Samuel Alito needs to be better known than he is. He is an important member of the U.S. Supreme Court. Justice Clarence Thomas thinks so; he is the one who assigns the Court's opinions and he assigns a lot of them to Justice Alito.
One of Justice Alito's pet theories (he calls them "doctrines") has to do with state legislatures. Justice Alito calls his theory about them "the independent state legislatures theory," oops, "doctrine." (It isn't really a doctrine, you know, except to Alito. Soon it will be, maybe, but not now, not yet.)
Both Mr. Eastman and Justice Alito base their theory on the first part, and only the first part, of what is generally called "the Elections Clause" in the U.S. Constitution. Here is what the first part says:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; …
This is the same theory that Eastman tried to sell to the Grievance Boy in January 2021, that the states have the power to set the times and places and manner of voting for federal elections. In Eastman's mind, that means one more step which involves having the states re-run every federal election where the results are not to his liking, starting with the Presidential Election of 2020. (Note to Mr. Eastman: The U.S. Constitution does not talk about state legislatures setting the times and places and manner of voting for Presidents; it talks about setting the times and places for voting for Senators and Representatives; read it.)
Justice Alito does not go that far, yet. He agrees with Eastman that the states have the power to set the times and places and manner of voting for federal Senators and Representatives and, in Alito's mind, this means that state legislatures have this power to the exclusion of state courts, state governors, and federal courts except the U.S. Supreme Court. That means that Justice Alito reads one provision of the U.S. Constitution all by its lonesome, as though it were the Articles of Confederation, say, or as though it was the only provision in a Constitution that actually embodies federalism and takes no constitutional powers away from state courts.
In other words, when a state legislature does something against the state's Constitution, state courts are constituted to be a check and a balance on the legislature's unconstitutional actions. Not so in Justice Alito's eyes. This is what he has in mind for the "independent state legislatures theory" --doggone it, there I go again, I mean "independent state legislatures doctrine."
Alito bases this theory (or doctrine) mainly on "the Elections Clause." Here again is the first part of what it says. I repeat the first part because that is the only part that Justice Alito uses in his Eastman theory:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; …
It is an important question how come "the Legislature thereof" is so important if it means a state legislative body, a body which exists if, and only if, the state's constitution says it does?
Justice Alito has never answered this question and, so far as I know, no-one has ever asked him.
No-one has ever asked him what to do with the rest of the Elections Clause of the U.S. Constitution, the part which Alito and his followers have never mentioned, I believe:
… but the Congress may at any time by Law make or alter such Regulations.
If the first part is the Eastman or "independent state legislatures" theory, shouldn't this second part of the Elections Clause be called "the independent and supreme Congress doctrine"? So far as I know, Justice Alito and his followers have never been asked this question, or anything like it.
It's a shame that some judges do not have to answer questions, isn't it? Or maybe "shameful" is the right word to use. It's certainly not a doctrine.
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