Five Things I’m Watching in Tomorrow’s U.S. Supreme Court Argument

On Wednesday, Dec. 7, the U.S. Supreme Court will hold oral argument in Moore v. Harper, a North Carolina redistricting case that could shake the foundations of federalism and judicial review. This landmark lawsuit gives the Court the opportunity to review the fringe independent state legislature (ISL) theory, which Republicans are promoting to argue that the U.S. Constitution grants state legislatures the exclusive ability to set the “time, place and manner” of congressional elections, without state court judicial review.

At the urging of North Carolina Republican legislators, the Supreme Court has taken up discussion of a fringe constitutional theory that it has previously dismissed. If the ISL theory is adopted, it could give immense power to state legislatures to set rules for federal elections without oversight from other parts of state government, which would have devastating ramifications for American democracy.

As we wait for the Supreme Court argument on Wednesday in Moore, several people have reached out to me to ask what I will be focusing on during the argument. Here are the five things I will be watching.

1. How broadly do the parties argue the case?

At its core, this case is about the North Carolina congressional map in place for the 2022 elections; this map was drawn by court-appointed special masters and adopted by the state court after the Republican-drawn map was struck down. The map in place for 2022, which was much fairer than the original map, will be redrawn before the 2024 elections. 

A North Carolina statute gives state courts the power to review redistricting maps, which is exactly what happened here. Because of this law providing for state judicial review, Moore could be a very narrow lawsuit that rejects the ISL theory with little fanfare. Whatever one might think about the ISL theory, the argument could be narrowly centered on whether North Carolina’s Legislature empowered its state courts in this instance. That would avoid the need for the Supreme Court to address any larger constitutional questions.

At the other end of the spectrum, the parties could argue about the application of the ISL theory to constitutional provisions not even before the Court, such as the Electors Clause of the U.S. Constitution, and to methods of redistricting, such as commission-drawn maps, that North Carolina did not use. If the argument is that broad, expect questions about the role (if any) of governors in vetoing legislative enactments and why judicial review is appropriate in federal court when Congress exercises its power under the Elections Clause.

2. Does Chief Justice John Roberts address his prior position on partisan gerrymandering?

In his 2019 opinion in Rucho v. Common Cause, Chief Justice John Roberts wrote that the U.S. Constitution does not prohibit partisan gerrymandering. In so doing, he assured future litigants that this ruling did not “condemn complaints about districting to echo into a void” because “States, for example, are actively addressing the issue on a number of fronts.” This was generally understood to mean that state courts were free to reign in partisan gerrymandering using their own state constitutions — precisely what North Carolina did in this case.  

One big question going into the argument is whether Roberts addresses this language in Rucho and, if so, what he says. While Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh signed onto the Rucho decision, it is less likely that they will feel bound by this text. For Roberts, abandoning it would likely require some explanation.

3. Do the three most conservative justices seek to build a majority?

There is little suspense about how Thomas, Alito and Gorsuch — the Court’s most consistently conservative justices — will end up ruling in this case. Each is likely to agree with North Carolina Republicans and adopt a strong, if not the most extreme, version of the ISL theory. Nevertheless, it is worth watching what questions they ask. 

Do they seem like they are trying to persuade two of their colleagues to build a majority, or are they laying out a sort of “take it or leave it” approach to their colleagues? If the conservative justices seem to be bringing Roberts, Kavanaugh and Justice Amy Coney Barrett along in their questioning, that means they think they may be able to get five votes. If not, then Thomas, Alito and Gorsuch are likely holding out for their own strong concurrence or dissent.

4. Does Justice Ketanji Brown Jackson lead the liberal justices on originalism?

As with the three most conservative justices, there is similarly little doubt about where Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson will land in this case. They are almost certain to reject the ISL theory in all but perhaps its most limited forms. 

Prior to Jackson’s assent to the high court, I would have expected that the opposition to the ISL theory would most likely have been led by Kagan. However, in the last voting rights case heard in October involving the Voting Rights Act and Alabama’s congressional map, it was the newest justice who made a convincing case that originalism — interpreting the Constitution and its amendments based on how the text was thought to be understood at the time it was written — supported the side of the Black voters rather than the state of Alabama. 

The history of the Elections Clause similarly presents the liberal justices with an opportunity to cast a normally conservative legal theory as supportive of their view that the ISL theory was not contemplated by the Framers of the Constitution. If so, Jackson may again be at the center of the argument.

5. Do Roberts, Kavanaugh and Barrett pick a side or seek a middle ground?

If there are three justices who are very likely to adopt a strong form of the ISL theory and three who are almost as certain to reject it, that leaves three in the middle. Make no mistake, these remaining three are not moderate justices: All three who land in the “middle” of the political spectrum were appointed by Republican presidents (two by former President Donald Trump) and all are very conservative in their judicial philosophy. 

Yet, the fate of the ISL theory and role of state courts in future election disputes rests in their hands. The outcome of this case likely depends on whether two of these “middle” justices  side with the most conservative justices or whether we see a fractured Court without any clear majority opinion because two or more of them see a middle ground. If it’s the latter, look to see if Roberts tries to author the controlling decision with at least Kavanaugh signing on.

While we won’t know the final outcome of this consequential case until 2023, tomorrow’s oral argument can clue us into how each justice views this fringe constitutional theory. It’s not just about the answers given and arguments made, but also about the types of questions coming from our nation’s top justices. With the very future of democracy hanging in the balance, I’ll be tuning in live and, if you can, you should too.