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Is the Supreme Court about to make another political decision?

If you think the Dobbs case overruling Roe v. Wade was a gut punch to fundamental rights, wait till you hear this one.

American democracy is at risk of serious deterioration. A recent poll shows that 71 percent of Americans think so, but only 7 percent identified it as our most pressing problem.

Democracy is threatened by MAGA; democracy is threatened by the events of Jan. 6; democracy is threatened by those who without evidence deny the outcome of the 2020 presidential election (or any election).

Another assault on democracy is the possible outcome of a case slated to come before the Supreme Court this term called Moore v. Harper, which will resolve whether a novel doctrine of constitutional interpretation known as “independent state legislature” has any validity. The conservative former federal judge J. Michael Luttig, who is not generally known for hyperbole, has called the case “the most important case for American democracy in the almost two and a half centuries since America’s founding.” Pretty strong stuff. Oral arguments will begin on Dec. 7.

Here’s the deal. The Constitution’s elections clause, Article I, section 4, as opposed to the parallel electors clause, Article II, Section 1, which lawyer John Eastman sought to twist a bit to his purpose on Jan. 6, provides that “the Times, Places and Manner of holding elections for [Congress] … shall be prescribed in each State by the Legislature thereof,” subject to the power of Congress to “make or alter such Regulation.”

In North Carolina, the Republican legislature came up with a redistricting map that looked like a surrealist painting. It was a rank gerrymander. Gerrymandering, in case this is a new term to you, is the political manipulation of electoral district boundaries with the intent of creating undue advantage for a political party. The manipulation may consist of “cracking” (diluting the voting power of the opposing party’s supporters across many districts) or “packing” (concentrating the opposing party’s voting power in one district to reduce its voting power in other districts). Seems quite sinister.

The North Carolina map, as drawn by the legislature, would bake in 10 of the state’s 14 congressional districts for Republicans. The Democrats, of course, unwilling to take the map scam sitting down, went to the Supreme Court of North Carolina, arguing that the legislature had concocted an “egregious and intentional partisan gerrymander” in violation of the state constitution, carving up the state to maximize GOP political power and redounding to the detriment of Democratic and minority voters.

The state Supreme Court agreed with them. It then adopted a new map requisitioned by the trial court, which had assembled a team of experts independent of the parties to do the job. The new map of course was less favorable to the Republicans than the old map.  

Disappointed by the decision, the Republicans thought they might have better luck in the United States Supreme Court, where five out of the six conservative justices had already expressed an interest in the independent state legislature doctrine. The doctrine teaches that in providing that the state legislatures draw the lines, the federal Constitution prohibits judicial review by the state Supreme Court even though the legislature’s actions may be violative of the state constitution.

“Nonsense,” says Judge Luttig as well as a brigade of constitutional lawyers. There is nothing in the Constitution to support the “independent state legislature” theory. They argue that because the Constitution turns the regulation of congressional elections over to state legislatures does not mean that the actions of the legislature are immune from judicial review.

The Constitution turns legislation over to Congress, they point out, and executive power to the president, but the actions of both are subject to review in the courts. If the framers of the Constitution wanted to make the acts of the state legislatures unreviewable when it came to congressional elections, they certainly knew how to say so. It’s as easy as adding the word “exclusively.”

The check on the state courts, Luttig contends, is the Supreme Court’s power to overrule the state disposition if it is so over the top that it violates the federal Constitution.

So the issue is framed. Does the legislature have the exclusive right to carve up the state’s congressional districts as it sees fit, or are its determinations subject to judicial review? And must the authority of the state courts to interpret their own constitutions give way to the unfettered discretion of the legislature?

Or is there a middle ground, perhaps the one suggested by two eminent conservative law professors, William Baude and Michael W. McConnell, who, like Luttig, is a former federal appeals court judge?

They argue that the Constitution’s text gives the regulation of congressional elections to the state legislatures, not to the states. In other provisions, the charter of government expressly refers to state conventions, judges or executives, while in contrast, other provisions refer to “states” without naming a particular state agency.

The two members of the professoriate point out that the legislature, like the court, is a creature of the state constitution. That means that state courts may hold legislatures to state constitutional limits but may not act as the legislature. 

So, the state courts may interpret the legislative action as violative of the state constitution. What they can’t do is draw the lines, as the courts attempted to do in North Carolina.

How will it all play out? The Supreme Court is very nervous these days about its own legitimacy. Recent Gallup polls say that 47 percent of Americans say they trust the judicial branch, an all-time low, while 58 percent disapprove of the way the Supreme Court is handling its job.

Chief Justice Roberts as well as Justices Breyer and Kagan have said that if the Court is perceived as politically partisan, it loses its legitimacy. Kagan has gone so far as to say that recent decisions are not “founded in the law.”

“Today, the proclivities of individuals rule,” she says. “Judges create problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.”

Roberts is particularly anxious that the Court not be perceived as Republican or Democrat but rather as independent, influencing with the force of its judgments.

The independent state legislature doctrine is a theory that lacks any support in the history, text or architecture of the Constitution. It has never been judicially approved. We will see what happens after Dec. 7 as the Court grapples with Moore v. Harper.

James D. Zirin, a former assistant United States attorney for the Southern District of New York, is the author of “Supremely Partisan-How Raw Politics Tips the Scales in the United States Supreme Court.”

Tags Gerrymandering J. Michael Luttig John Eastman Judicial review Redistricting States rights supreme court abortion ruling US Supreme Court

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