Here’s just a sliver of what the Supreme Court did in the past two weeks of decisions. It doesn’t even count the atrocities it rolled out earlier in the session, including all of the destructive shadow docket decisions that were made without hearings, without any transparency, and often even without the Court’s extremists signing their names.
For the coup de grâce of the session, the Court announced that it will hear Moore v. Harper, the North Carolina Republicans’ appeal in a redistricting case that, in my colleague Stephen Wolf’s words, “could have catastrophic consequences for voting rights and fair elections across the country next year in advance of the pivotal 2024 elections.” Not to put too fine a point on it, but the case could pave the way for Donald Trump to effect the electoral coup John Eastman cooked up to overthrow the 2020 election. And there are at least four extremists on the Court that will be willing to go there.
The case in question involves a Republican appeal of a state court ruling that struck down their congressional gerrymander earlier this year and replaced it with a much fairer map in a groundbreaking ruling that held that the state constitution prohibits partisan gerrymandering. Republicans are now asking the Supreme Court to rule that the U.S. Constitution gives state legislatures near-absolute power to set all manner of federal election laws, including district maps—regardless of whether state constitutions place limits on abuses such as gerrymandering.
The case centers on a wacky legal theory cooked up in conservative fever dreams: the “independent state legislature” theory. Adherents assert that state legislatures have independent authority—over state courts—to set election laws and draw congressional maps in their “originalist” reading of the constitution.
Back in March, the Supreme Court chose not to block the congressional maps approved by state courts in both North Carolina and Pennsylvania in challenges brought by those states’ Republicans. But three of the extremist justices made it clear that they would have granted the emergency and a fourth issued an invitation to North Carolina to push the issue with a petition to the court.
“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Justice Alito wrote in March, joined by Justices Thomas and Gorsuch. Justice Kavanaugh wrote that “The issue is almost certain to keep arising until the court definitively resolves it,” but it shouldn’t be done in an election year. Then he invited North Carolina to come back. He said that the court should grant a petition “in an appropriate case—either in this case from North Carolina or in a similar case from another state.”
Where Chief Justice John Roberts and Justice Amy Coney Barrett are on this one isn’t clear, but you can bet at least one of them will be happy to go along with finishing her brethren’s coup.
The consequences for the nation—for the globe—are dire. On everything, from abortion to criminal justice to the environment to voting rights. The only way this centuries-long experiment in democracy will survive is by taking minority rule away from the Court and from the Senate which created it.
End the filibuster. Expand and reform the court. Or wave goodbye to every freedom that matters.
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