After Wednesday’s oral arguments in Moore v. Harper — the Supreme Court election law case from North Carolina that critics say threatens to unravel American democracy — legal and political observers will be parsing the justices’ questions and comments to see how they might be leaning.
Extra attention will be paid to two in particular, who could end up providing the critical swing votes: Chief Justice John Roberts and Justice Amy Coney Barrett.
A ruling in favor of North Carolina would give state legislators nationwide significantly more power to engage in gerrymandering for partisan political gain — as well as to pass new laws related to voter ID, mail-in ballots and other rules for elections, all without any of the traditional checks and balances found in state constitutional protections and judicial oversight.
Ruling in favor of the legislature would require the justices to jettison 230 years of historical precedent, as well as a century of Supreme Court legal precedent. But the court’s conservative majority has not shied away from going against precedent in recent decisions.
In this case specifically, four of the conservative justices have expressed at least some support for North Carolina’s arguments at earlier stages of the case. Meanwhile, the court’s three liberal justices all appeared strongly opposed to the arguments the legislature made Wednesday.
That doesn’t necessarily mean those seven justices’ opinions are set in stone. With oral arguments now finished the court will start the process of drafting opinions and dissents, during a confidential process in which they can try to sway their fellow justices one way or another.
But even if those seven do end up ruling as many expect, there’s still not a five-justice majority for either side. That leaves the two remaining conservative justices — Roberts and Barrett — as the potential swing votes to decide which way the ruling will go.
The following are excerpts from each of the nine justices during Wednesday’s hearings, which might shed some light on how they view the case.
The quote: “At page 33 of your reply brief, sort of the last gasp of briefing, you have — you suggest — that there’s a ‘narrower, alternative ground’ to decide the case in your favor which would allow some substantive state restrictions to be enforced. Could you articulate exactly what you think that is?”
Why it matters: In their briefs, legislative leaders quoted heavily from past dissents Roberts has written in election law cases, clearly trying to win him over to their side in this case.
Yet in a profile of Roberts earlier this year, following the court’s decision to overturn Roe v. Wade, the New York Times wrote that Roberts has long sought to preserve the court’s reputation as an apolitical body by “promoting narrow, unanimous decisions” instead of decisions that make big changes, and along party lines.
His question Wednesday to the legislature’s attorney appeared to be exploring if that sort of narrow, less politicized ruling might be possible in this case — or if any ruling in favor of the legislature would have to be as sweeping as critics fear.
Amy Coney Barrett
The quote: “I was just going to ask, is your formalistic test just a way of trying to deal with our precedent, or are you rooting that in the Constitution itself? Because you do have a problem with explaining why these procedural limitations are okay but substantive limitations are not.”
Why it matters: Barrett is widely seen as the other swing vote in addition to Roberts. This question — posed to David Thompson, the lawyer for the legislature — is highly technical, but it doesn’t take a law degree to know it’s notable when the possible swing vote on the court says “you do have a problem” with the legal logic behind your argument.
She continued to press Thompson on various procedural grounds, and they went back and forth for a bit until Barrett told him his explanation “is — as a former civil procedure teacher, I can tell you — is a hard line to draw.”
The quote: “If the state legislature had been very, very generous to minority voters in their redistricting, and the state supreme court said under their state constitution, that this was — violated their own state constitution, of North Carolina, would you be making the same argument?”
Why it matters: The only current member of the court to have embraced the “independent state legislature” theory when a handful of conservative justices unsuccessfully tried pushing it during the Bush v. Gore case in 2000, Thomas is suggesting that its opponents now are being hypocritical, and only oppose state legislators having more power if they’re Republicans.
The quote: “Yes. If you rewrite history, it’s very easy to do.”
Why it matters: After a lawyer for the legislature told Sotomayor he could easily address her concerns with historical examples, the court’s longest-serving liberal justice did not attempt to hide her distaste for the independent state legislature theory and the arguments Republicans were making on its behalf.
The quote: “I would think that our precedent gives you a lot of problems, I mean, if you really take every statement that this Court has said about the matter at hand. I’ll just read you a few of them and they’re — they’re pretty recent, you know?”
Why it matters: Throughout history, the U.S. Supreme Court has repeatedly recognized the right of state courts to decide issues affecting federal elections.
Kagan, one of the court’s liberal justices, said that in order to rule in favor of the legislature now, the court would have to throw out legal precedent that has existed for generations, as well as precedent the court set as recently as 2019 — fittingly, in yet another gerrymandering case out of North Carolina, for which Roberts wrote the majority opinion.
The quote: “Basically, at the beginning, they say what they’re doing, and, basically, they’re saying in no uncertain terms, ‘Look, there’s legislative malfunction here. The legislature has adopted a — a political gerrymandering, and it’s really hard to amend the state constitution, and we don’t have a referendum to correct it, so there’s a big problem in the state and we have to step in.’”
Why it matters: One of the court’s most conservative members, Alito here is describing his opinion of the N.C. Supreme Court’s ruling earlier this year that threw out Republican lawmakers’ preferred maps as unconstitutionally gerrymandered.
Moore and other top lawmakers said that decision was motivated by judicial activism, not the law, which was what led them to file Moore v. Harper in the first place to argue the independent state legislature theory — a theory the state Supreme Court called “repugnant,” The N&O has reported.
Alito appears here to side with the Republican-led legislature, not the Democratic-majority state court.
The quote: “Your position seems to go further than Chief Justice (William) Rehnquist’s decision in Bush v. Gore, where he seemed to acknowledge that state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that the state court had not significantly departed from state law. And he drew on a body of precedent that has existed previously.”
Why it matters: As a private attorney in 2000, Kavanaugh pushed the independent state legislature theory while he was working for George W. Bush’s campaign in the Bush v. Gore case. However, arguing in court for a client is very different from issuing a ruling as a judge.
And as shown by this comment of his to Thompson, Kavanaugh hasn’t been quite as aggressive as some of his fellow conservative justices in publicly backing the North Carolina lawmakers’ case.
Earlier this year when Alito, Thomas and Neil Gorsuch all said they wanted to stop North Carolina from using court-ordered congressional districts for 2022, and instead force the state to use the GOP-drawn maps that had been ruled unconstitutional, Kavanaugh declined to sign on with them — although he did write that he wanted the court to tackle this issue eventually.
The quote: “Some of the amici tell us that we’ve never had a state court strike down a state law, with respect to federal congressional districting, on political gerrymandering grounds, until the last several years. So if we’re talking about 200 years’ worth of history, this one is pretty new, too, right?”
Why it matters: Critics of the independent state legislature theory say that accepting it would require the court to ignore how election laws have been made and enforced for the last 230 years since the Constitution was written.
But Republican lawmakers and their supporters in this case, known in legal parlance as amici, argued the issue has only recently become necessary to address because state supreme courts have only recently begun getting more aggressive in their rulings on political lawsuits, particularly on the gerrymandering front. Gorsuch, a Donald Trump appointee, seemed to agree when he pressed an attorney for the challengers on that exact point.
Ketanji Brown Jackson
The quote: “I guess what I don’t understand is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power.”
Why it matters: The court’s newest member, a Joe Biden nominee, Jackson focused her time on several versions of this same question. The GOP argument is that state legislatures should have full control over election rules, without being bound by their state constitution and subsequent judicial oversight in state court, because the U.S. Constitution says state legislatures should set the federal election rules.
But the U.S. Constitution never defines what any state legislatures actually are, she said; that only comes from state constitutions. Without those, there could be multiple groups that claim to be the rightful state legislature. So she repeatedly questioned how the Supreme Court could rule that state legislatures should be allowed to pass laws that violate their own state constitutions, when those constitutions are what gives them their power in the first place.
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