The Roberts Court Draws a Line
This story seems to be about:
- Alabama ★★
- American ★
- Americans ★
- Amy Coney Barrett ★★★
- Biden ★
- Constitution ★★
- Court ★★★
- Donald Trump ★
- Ethan Herenstein ★★★★
- Federal Constitution ★★★★
- Framers ★★★
- Harper ★★
- John Roberts ★★★
- Justice Samuel Alito ★★★
- Neil Gorsuch ★★★
- North Carolina ★★
- Rick Hasen ★★★
- Roberts ★★★
- Roberts Court ★★★★
- Supreme Court ★★
- Thomas ★★
- Thomas Wolf ★★★★
This story seems to be about:
- Alabama ★★
- American ★
- Americans ★
- Amy Coney Barrett ★★★
- Biden ★
- Constitution ★★
- Court ★★★
- Donald Trump ★
- Ethan Herenstein ★★★★
- Federal Constitution ★★★★
- Framers ★★★
- Harper ★★
- John Roberts ★★★
- Justice Samuel Alito ★★★
- Neil Gorsuch ★★★
- North Carolina ★★
- Rick Hasen ★★★
- Roberts ★★★
- Roberts Court ★★★★
- Supreme Court ★★
- Thomas ★★
- Thomas Wolf ★★★★
In rejecting the independent state legislature theory, a thoroughly right-wing Supreme Court sent the message that it will not simply accept whatever ludicrous partisan legal theory its comrades in the conservative legal movement come up with. At least, not every single time.
The theory, as advanced by North Carolina Republicans seeking to ignore a state-supreme-court ruling that their partisan gerrymandering violated the state constitution, argued that only state legislatures could set federal election rules, and thus other state actors, like state courts and governors, had no power to intervene. This would allow state legislatures near-unchecked power to disenfranchise their own constituents. The most extreme possible interpretation of the theory, articulated by Donald Trump’s 2020 campaign—that state legislatures can choose to overturn federal election results—helps illustrate the potential stakes.
Yet the theory itself was based on little more than a pedantic misreading of the Constitution and partisan self-interest. Of relatively recent vintage, the theory was cooked up by conservative legal activists and given a veneer of “originalism,” despite, as Thomas Wolf and Ethan Herenstein wrote last year, a century of precedent and practice going in the other direction and a near total absence of historical evidence to support it. Indeed, one of the historical documents submitted by the North Carolina GOP was a literal hoax, emblematic of the conservative movement’s frequent approach to historical analysis. That makes it an excellent example of undead constitutionalism, the right-wing twin of the doctrine of living constitutionalism, in which the dictates of the Constitution retrospectively shift with contemporary conservatives’ ideological priorities.
“The argument advanced by the defendants and the dissent … does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life,” Chief Justice John Roberts wrote in his majority opinion. “The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.”
Justice Clarence Thomas dissented on the grounds that the case was moot because a newly elected conservative majority on the North Carolina Supreme Court reversed the original decision—and he has a point—but then spent the next two sections of his dissent explaining why the crackpot theory was reasonable. Justice Neil Gorsuch joined Thomas’s dissent fully, while Justice Samuel Alito joined only the part arguing that the case was moot.
A win for the North Carolina GOP in Moore v. Harper would have extended the Roberts Court’s record of eroding American democracy by gutting voting-rights protections. It also would have been an act of shocking dishonesty on the part of the Supreme Court, which ruled a few short years ago, in another decision curtailing voting rights, that voters could use their state supreme courts and constitutions to push back against partisan gerrymandering. The Court’s decision today sends the message to the conservative legal movement that as conservative as the majority may be, their comrades cannot count on five guaranteed votes for whatever nonsense they come up with. In some cases, such as the clash over the Biden administration’s COVID-vaccine mandate and the recent school-prayer case, the justices are happy to oblige. But not always.
The conservative legal activists who advanced the independent state legislature doctrine will now complain that the Court caved to liberal pressure, part of a chorus of whining that has grown louder amid investigative reporting on the conservative justices’ coziness with right-wing billionaires who have clear ideological interests before the Court.
Perhaps the public criticism of the Court, particularly regarding voting rights, has caused the justices to think more carefully before embracing harebrained legal theories. Some conservative defenders of the Court clearly worry that’s the case, and warn darkly that liberals are trying to “delegitimize” the Court. But the idea that placing pressure on the Court is somehow immoral or inappropriate is laughable. Such complaints are merely another example of Republicans insisting that it is unfair for their political opposition to engage in politics.
The public has the right to criticize the powerful, unelected tribunal that has the power to shape every aspect of their lives. Also, conservatives are constantly engaged in such pressure campaigns, both in public, as a way to encourage the right-wing justices to embrace specious legal theories, and in private, in the form of cultivating social ties with the justices and rewarding them with lavish vacations and expensive gifts. When Republicans complain of liberal efforts to “delegitimize” the Court by engaging in substantive criticism of its rulings and conduct, what they are saying is that they’re the only ones who have the right to exert such pressure. National Review’s argument that “activists have concluded that since they lack ideological control over the Court, it must be delegitimized” is offered as a criticism of the left; it is also a straightforward description of the conservative legal movement from the 1960s to the moment Amy Coney Barrett was confirmed as the sixth Republican-appointed justice.
Other commentators may insist that, despite the Roberts Court’s alarming record on voting rights, this ruling and a prior decision rejecting racial gerrymandering in Alabama show that it is not as hostile to democracy as it might seem.
But the idea that the Roberts Court has fully retreated from its efforts to chip away at Americans’ right to self-determination is overstated. As the voting-rights scholar Rick Hasen writes, the language in Roberts’s opinion furnishes a “new tool to be used to rein in especially voter-protective rulings of state courts.” This is a John Roberts specialty, an incremental conservative win that looks like a loss only because it rejects the most extreme right-wing interpretation of the law.