Moore v. Harper case could upend decades of established constitutional law and endanger democracy
The U.S. Supreme Court, as if rushing to settle old grievances, in recent weeks has thrashed about in a virtual frenzy of “originalism” – never mind the consequences for America’s civic well-being.
Our federal Constitution neglects to confer a woman’s explicit right to have an abortion? Then states must be free to impose abortion bans going so far as to require victims of rape and incest to bear the children of their predators – unless they can afford to have the procedure done in jurisdictions where such women (or girls) aren’t doubly victimized.
The Second Amendment guarantees a right (arguably a qualified right) to bear firearms? Well, then, states cannot require gun owners to show why they have a particular need to carry their weapons in public. As if letting the number of firearms circulating on the nation’s streets and in its neighborhoods serves a public purpose in an era of sickening gun violence, the July 4 horror outside of Chicago being just the latest example.
The law intended to fight air pollution doesn’t specifically authorize the federal government to tell power companies to limit their use of greenhouse gas-producing fossil fuels? Sorry – those companies can continue to slow-walk the transition to renewable energy sources while temperature-driven climate change degrades the lives of millions.
And then there was this humdinger of a decision by the justices, or enough of them to potentially throw our nation’s democratic system of checks and balances badly out of whack. Wouldn’t you know it: The decision, announced June 30 with no explanation, sprang from strategies cooked up right here on Raleigh’s Jones Street by our Republican-controlled General Assembly.
If there’s any good news, it’s that the high court hasn’t rendered a final ruling. Instead, it has agreed to consider complaints by state House Speaker Tim Moore, state Senate President Pro Tem Phil Berger, and key colleagues that, in essence, they were cheated out of a chance to gerrymander the state’s congressional districts to give Republicans a lopsided advantage.
It takes a thumbs-up from at least four of the nine justices to accept a case for review. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas already have indicated they’re itching to side with the Tar Heel legislators. Justice Brett Kavanaugh has come close, declaring that the issues involved warrant the Supreme Court’s attention.
Of the court’s other two Republican appointees, Chief Justice John Roberts Jr. might be the least inclined to join with the previous four, based on a pivotal opinion he wrote in 2019. That would leave Trump-sponsored Amy Coney Barrett in position to cast the swing vote. To which we simply have to say, uh-oh.
Shiny new theory
True to their hyper-literal reading of the Constitution, Alito and his cohorts apparently think the clause putting state legislatures in charge of setting the “times, places, and manner” by which members of Congress are elected forecloses any review by state courts. Legal pundits across the land in past weeks and months have alerted us to the rising appeal in Republican circles of this so-called independent state legislature theory.
If a Supreme Court majority takes the bait, the consequences in North Carolina could play out like this. First, the state Supreme Court’s decision earlier this year to reject the legislature’s district map for U.S. House seats, and to substitute one devised under the court’s auspices, would be overturned. Read more