Can An Outlier Legal Theory Really Threaten America’s Democracy?

Also: Goldman's David Solomon gets serious about cost-cutting – by riding the London Tube – and an international investigation into the OceanGate submersible tragedy begins.

Can An Outlier Legal Theory Really Threaten America’s Democracy?

In these strange times, unfortunately, the answer is yes.

While very few of us have the interest or bandwidth to be rabid U.S. Supreme Court-watchers, a decision handed down this week by Chief Justice John Roberts proved a momentous one, as it examined whether a fringe legal theory should have the power to upend the nation’s elections.

The issue at hand turned on an outlier theory, often referred to as I.S.L.T – short for “independent state legislature theory.” Sounds like a delightful thing to unpack, right?

I.S.L.T. has zero case law behind it and stems from what can only be called a creative reading of the U.S. Constitution’s Elections Clause, which holds that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

As you can imagine, the Elections Clause has become very stimulating reading for a growing slice of the electorate hunting for ways to punch holes in America’s elections. 

Some of the liberties its adherents say I.S.L.T. bestows on state legislatures include: virtually unchecked power to run federal elections, the drafting of electoral maps for partisan advantage, banning various forms of voting like mail-in ballots and – you knew this one was coming – overturning the results of elections. 

A few weeks back, Power Corridor highlighted in its Friday “Power Reads” section a story in The New Yorker explaining some of the finer nuances of I.S.L.T. Some insights from the article:

I.S.L.T. [is] a line of legal reasoning that scarcely existed twenty-five years ago, but has since traveled from the fringes of legal discourse to the centers of power. Some advocates of the theory interpret a clause of the Constitution to mean that state legislatures can run federal elections almost however they choose…challenging election results on thin procedural grounds. Even when these actions violate state constitutions, the advocates say, state courts would be powerless to stop them. (It’s this lack of oversight that would render the legislatures “independent,” though a less euphemistic word for it might be “rogue.”) A still more drastic version of the theory—not one directly at issue in the case, but one that might follow from its logic—could allow a legislature to award its state’s Electoral College votes to any presidential candidate, even one who lost its popular vote.

Although I.S.L.T. is not legal doctrine (in other words, it has not been established by precedent in the common law), that’s not stopped compact groups of enthusiastic election-overturners from trying to use it to chisel away at the laws of our land.

Following the 2020 presidential election, former President Donald Trump’s lawyers urged the Supreme Court to disregard the “unlawful election results” of Pennsylvania, Wisconsin, Michigan and Georgia. (The situation, which did not end well for some states, brought America such embarrassingly laughable cases as “Texas v. Pennsylvania.”) 

The request made by Trump’s lawyers came on the heels of the disproved claims of election fraud. The lawyers argued that the Supreme Court should let the state legislatures decide on the outcomes of the elections instead. Their line of reasoning: I.S.L.T.

Similarly, I.S.L.T. cropped up again in defending attempts to dissolve the Wisconsin Election Commission and the partisan gerrymandering of North Carolina’s congressional map amid efforts to overthrow the 2020 election. (Gerrymandering is named for Elbridge Gerry, an American founding father and former vice president known for redrawing voting districts to give his favored party an advantage in elections – a move understood to be thoroughly un-democratic.) 

Which neatly brings us to the Supreme Court’s decision this week. This case focused on the gerrymandering of North Carolina’s 2022 congressional map, which the North Carolina Supreme Court found to be engineered to cement a long-term Republican advantage in a state known for extremely tight elections.

Republican lawmakers then sued, asking the Supreme Court to find that North Carolina courts and other state entities may not meddle with the election rules set by state legislatures when it comes to federal elections. Their rationale: I.S.L.T. 

The Supreme Court did not agree the I.S.L.T. argument held any water, striking a major blow to the theory. In a 6-3 opinion supported by liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, as well as conservative justices Brett Kavanaugh and Amy Coney Barrett, Chief Justice Roberts wrote that the North Carolina Supreme Court did not violate the Elections Clause of the U.S. Constitution when it invalidated North Carolina’s congressional map. 

“When state legislatures act pursuant to their Elections Clause authority, they engage in lawmaking subject to the typical constraints on the exercise of such power,” he wrote. “In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.”

Case closed? Not exactly. In a twist that could only happen in America, as this case was making its way to the Supreme Court, the North Carolina Supreme Court flipped its majority to Republican and reversed its prior decision to back the defenders of the Republican-drawn congressional map. 

In other words, North Carolina’s gerrymandered map can now stand.

“In short, this case is over, and petitioners won,” Justice Clarence Thomas wrote in his dissenting opinion, joined in full by Justice Neil Gorsuch and in part by Justice Samuel Alito.

He argued that the case should have been dismissed as moot, as plans for the map were validated by the newly reconstituted North Carolina Supreme Court. “It follows that no live controversy remains before this court,” he said. 

Certainly a loss for I.S.L.T., but America’s shamefully skewed maps – which have outlived Gerry by two centuries – live on.

David Solomon, he’s just like us.

The Goldman Touch 

Can the monster bank’s CEO get his groove back?

Gone are the days of Goldman Sachs being labeled as a “planet-eating Death Star” or a “great vampire squid wrapped around the face of humanity.”

In its place are stories of an iconic Wall Street bank rife with infighting, lawsuits, layoffs and a weakened chief executive whose side gig as a DJ was recently gleefully derided by his predecessor as, to put it kindly, dilettantish.

Goldman’s CEO David Solomon, who goes by the DJ name “D-Sol,” when he’s spinning house music, has come under fire from almost every direction, drawing reproof from senior management, as well as Goldman’s former chief, Lloyd Blankfein, who bemoaned Solomon at a Miami gathering of the bank’s partners earlier this year as “spending too much time away from his day job, jetting around on Goldman’s private planes and DJ-ing at nightclubs and festivals,” according a story out this month in The Wall Street Journal. Solomon was not present for that gibe.

Goldman this week began laying off what is expected to be 250 employees, including around 125 managing directors, including investment bankers, as Wall Street braces for another round of interest rate hikes this year and deal flows remain in an interminable slump.

The downsizing comes on the back of news last month that Goldman agreed to shell out more than $215 million to settle a class-action lawsuit brought by former employees of the investment bank alleging widespread bias against women in both pay and promotions, according to a joint statement from Goldman and the plaintiffs. 

In addition, Goldman had to pay $12 million to settle a departing female partner’s claims of a sexist work environment, which included an account of Solomon making vulgar or dismissive remarks about women at the bank, according to a widely cited story in Bloomberg.

This month, Goldman’s managing directors were told to slash around $1 billion in costs as hopes of an economic recovery fade for 2023 and investment banking revenue sinks around 46 percent in the second quarter, compared with the prior year, according to preliminary data from Dealogic.

Still, amid all the belt-tightening and withering criticism, Solomon may be so lowly rated as to be underrated. According to one banking source on Wall Street, much of the animus against him right now seems to be arising as much from Goldman’s troubles as the overall sour mood in a “very tough” dealmaking environment. “People are feeling threatened and looking for a scapegoat,” he says.

Perhaps looking to show he’s not all about private jets and music festivals, Solomon posted a selfie (see photo, top) from the United Kingdom in recent days, traveling in slightly more “downmarket” digs: the London Tube.   

A Word on the ‘Unfailable’ Submersible

It doesn’t appear the deep-ocean submarine ever reached the Titanic.

A state-of-the-art submersible made from a carbon fiber tube, designed in conjunction with the U.S. National Aeronautics and Space Administration, the University of Washington and Boeing, was “intended to be failsafe.”

Since the loss of OceanGate’s Titan submersible last week (which I didn’t write about at the time, because it felt too soon and too raw), I’ve thought a lot about this. How could we really allow another sea-going vessel, similarly meant to never fail, venture down to see the Titanic, which received the same billing 111 years ago — and fail?

During the herculean rescue effort last week, social media lit up with all kinds of unforgiveable “eat the rich” remarks toward the submarine’s well-heeled inhabitants who paid as much as $250,000 for the trip. I am sure many regretted them and there was a good deal of shame-deleting after the fate of the vessel’s five occupants became known. Late last week the U.S. Coast Guard reported it found remnants of the submersible, which had suffered a “catastrophic implosion.” Such an event would have killed those aboard within 25 milliseconds – far faster than the brain would have been able to process it. To date, no remains have been found.

Among those lost were OceanGate’s chief executive and Titan captain, Stockton Rush; British businessman Hamish Harding; French oceanographer and Titanic expert Paul-Henri Nargeolet; and billionaire British-Pakistani billionaire businessman Shahzada Dawood and his son, 19-year-old Suleman Dawood. (In a heartbreaking postscript, details emerged in the aftermath that Suleman had been very uneasy taking the trip, but ultimately decided to join his father, who had a passion for Titanic history, for the Father’s Day weekend.)

Just around an hour and a half after the deep-sea vessel began its more than 2-mile journey to the wreckage of the Titanic, off the coast of St. John’s, Newfoundland, in Canada, it lost all communication with the surface.

It doesn’t appear the submersible ever reached the Titanic, as Navy sensors detected an implosion or explosion in its acoustic data in the general vicinity of where the Titan was operating when it lost contact. At that point, most experts think the Titan would have been about halfway to three-quarters of the way to its destination, at most.

Five major pieces of the submersible fell within 1,600 feet of the wreckage of the Titanic, discovered by a remotely operated vehicle, allowing the Coast Guard to confirm Titan’s loss. “The debris is consistent with the catastrophic loss of the pressure chamber,” said Rear Adm. John Mauger, commander of the First Coast Guard District. Parts of the submersible found included its tail cone, nose cone and both ends of the pressure hull.

The remnants were found within a wide debris field, which is still being studied and salvaged. An international investigation into what caused the submersible to implode is now underway. The probe includes a group of international agencies and investigators from the U.S., Canada, the U.K. and France. Their goal, according to the Coast Guard, is to prevent a similar occurrence from happening again, with a final report to the International Maritime Organization. Investigators will also be reviewing voice recordings from the mother ship that carried Titan and its five occupants.

In the meantime, reports have emerged that OceanGate not only misrepresented the safety of its submersible, but exaggerated its partnerships with NASA, Boeing and academia.

In fact, the website of Bahamas-based OceanGate Expeditions, to this day, still invites risky adventurers to “join a Titanic expedition” and “explore the world’s most famous shipwreck.” Not unfailable, but unbelievable.