The North Carolina Supreme Court’s decision to rehear a case on gerrymandering—that it just decided last year—is a canary-in-the-coal mine signal of just how emboldened judges now feel about blatantly politicizing their judicial decisions.
In February 2022, the state’s high court struck down Republican-drawn congressional and legislative maps as violations of the North Carolina Constitution in the case of Harper v. Hall. The court reasoned that the GOP plan violated the North Carolina Constitution’s equal protection, free speech, and freedom of assembly clauses by likely giving 10 of the 14 House of Representative seats to Republicans, even though voters divide about 50-50 Democrat versus Republican in the state overall.
But less than a year later, the court decided to rehear the case, which it did on March 14, and the same court now appears poised to overrule its own barely 1-year old precedent. Well, almost the same court.
It’s still the North Carolina Supreme Court, but last year’s state elections changed the court’s political majority from Democrat to Republican. Despite the fact that the political affiliation of judges is not a legal basis for overturning cases, that seems to be the only reason the case is being reheard.
Sound familiar? Recall the dissenting opinion by Supreme Court Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in Dobbs v. Jackson where the majority struck down the precedent of Roe v. Wade that had stood for a half-century: “No recent developments, in either law or fact, have eroded or cast doubt on these precedents. Nothing, in short, has changed… The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”
The new Republican majority of the North Carolina Supreme Court is following SCOTUS’ lead by doing the same thing.
Only twice in the past 30 years has the state high court granted requests for rehearings. As pointed out by North Carolina Supreme Court Justice Anita Earls—one of the two remaining Democrats on that court—there is no basis for rehearing the cases (there are two cases affecting voting rights that are being reheard).
Said Earls: “Nothing has changed since we rendered our opinion in this case on 16 December 2022: the legal issues are the same; the evidence is the same; and the controlling law is the same. The only thing that has changed is the political composition of the court,” she wrote. “It took this court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.”
The potential significance and reach of these politically motivated rehearings is hardly limited to North Carolina law, since the case is inextricably linked to Moore v. Harper—the case pending before the United States Supreme Court which is an appeal of the North Carolina Supreme Court decision from last year.
The arguments at SCOTUS have focused upon the so-called “Independent State Legislature Theory” (“ILST”)—a theory which if upheld by SCOTUS would allow state legislatures unreviewable power to pass laws affecting federal elections. Such a power would have allowed Trump lawyer John Eastman’s theory of substituting Trump state elector slates to overturn the 2020 election results and install Trump as president for a second term.
The underlying rationales between the state and SCOTUS matters are the same: Republican majorities want the power to do what they please with election laws.
One Republican North Carolina justice suggested through his questioning there was no way for courts to properly adjudicate “fair” election maps, and thus, ultimate power should reside in the state legislatures, with no ability of either the executive (the governor) or judiciary to interfere. A Democratic justice pushed back essentially asking how fairness can be decided by a legislature if that legislature is elected unfairly. Note that the Supreme Court’s 2019 decision in Rucho v. Common Cause held that gerrymandering is a political question, not reviewable by federal courts, and left to the state legislatures and state courts to decide.
The position taken in the North Carolina rehearing—as well as the ILST argument before SCOTUS—would eliminate the state courts (and the governors), leaving only state legislatures to make these decisions.
Recognizing the impact of the North Carolina Supreme Court rehearings, SCOTUS has asked for additional briefing from both the Justice Department and the parties petitioning the nation’s highest court for additional briefings on how the decision to rehear the cases may affect the decision in SCOTUS.
This request presents Attorney General Merrick Garland’s DOJ with a critical strategic decision in whether to ask SCOTUS to wait for the outcome of the rehearing by the North Carolina Supreme Court. Such a request, if granted, would essentially punt the ILST decision to another day.
The downside of such an action is that it might allow North Carolina to decide that its own state legislatures have unreviewable power to impose unfair election laws. But the potential upside is that such a decision would be limited to North Carolina. In contrast, a ruling by SCOTUS that state legislatures have supreme power would affect the entire country.
In the past, SCOTUS could be counted on to adopt a minimalist approach to jurisprudence by avoiding controversial decisions whenever possible. The granting of a rehearing in the North Carolina case offers such an out for SCOTUS. But it is an out that the young activist group of Federalist Society-weaned conservative justices, who show little appetite for an incremental approach to change, may be unlikely to take.
Their example may have inspired the naked power grab by the newly minted Republican majority on the North Carolina Supreme Court, but SCOTUS justices’ power is much more dangerous because of their life tenure. State supreme courts—even if they sway and reverse themselves with each change in political fortunes—are still subject to the will of the people through elections and term limits. The SCOTUS justices know no such limitations.