[EL] Kavanaugh's avoid-chaos theory

[Doug Spencer]

Rick P's argument that Lessig is promoting a false equivalence is
compelling to me. It's seems clear (to me) that the 20th Am does not raise
similar risks as Hamiltonian electors. But I'm curious why a ruling in
favor of the faithless electors would, in the words of Kavanaugh,
"facilitate or create" chaos. I'm thinking about two different issues here:

First, I don't dispute that faithless electors could throw the country into
turmoil. But how likely is that outcome? I'm reminded of the
*McCutcheon *majority
that, in response to a set of hypothetical worst-case scenarios, held that
"this sort of speculation cannot justify the substantial intrusion on First
Amendment rights at issue in this case." At what point does speculation
become justiciable? Does the answer turn on a risk assessment? Or merely
when the issues presented require a tiebreaker?

Second, how should one define chaos? What if the chaos Kavanaugh imagines
in 2020 leads to a constitutional amendment eliminating the Electoral
College in 2022? If the Court is open to speculation about time *t *should
they be agnostic with respect to *t+1*? Rick P has argued
<https://www.journals.uchicago.edu/doi/abs/10.1086/676638> this slope
becomes slippery very fast, but in this case "chaos" has both a relative
and an independent meaning.

I'll admit that I'm sympathetic to the "avoid chaos" theory, which I think
helps explain a lot of living constitutionalism. But I think the
implications run deeper than Kavanuagh perhaps recognized with his
off-the-cuff remark at oral argument.

Doug

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