The North Carolina Supreme Court has thrown SCOTUS a lifeline

Moore v. Harper poses substantial peril for the higher court’s legitimacy.

The North Carolina Supreme Court (NCSC) has thrown a face-saving lifeline to the United States Supreme Court (SCOTUS) in Moore v. Harper, a case that poses substantial peril for the higher court’s legitimacy. NCSC recently announced it would rehear a decision that was argued before SCOTUS in December. The decision will almost certainly be reversed by NCSC, rendering the case moot. SCOTUS should grab the lifeline and dismiss the appeal, saying its review of the case was improvidently granted, thereby saving itself great embarrassment in several respects.

The appeal resulted from NCSC’s decision that an extreme gerrymander by the state legislature violated the state’s constitution. The legislature sought SCOTUS review, claiming that the decision violated the “independent state legislature theory” (ISLT) — a preposterous contention that state legislatures, acting alone, without executive approval or judicial oversight, have the power to establish federal congressional districts. Serious constitutional scholars were surprised that at least four members of SCOTUS voted to hear the appeal because ISLT has been thoroughly discredited. The case was completely undeserving of SCOTUS review. The only conceivable reason for the high court to take the case would be to allow GOP-controlled state legislatures to gerrymander to their heart’s content without interference by their high courts.

After SCOTUS decided to take the case, several developments arose that should be of concern to the GOP majority. First, the Conference of Chief Justices, representing the high courts of every U.S. state and territory, filed a friend of the court brief debunking ISLT as violating the fundamental constitutional concepts of federalism and separation of powers. As a former member of that distinguished group, I can tell you that its intervention in this case is extremely rare and had to be an eye-opener for the justices.

Secondly, the 2022 midterm elections demonstrated that the ISLT door can swing both ways, something that had probably not occurred to the GOP majority. Had the extreme gerrymander devised by the Democrat-controlled New York Legislature not been swatted down by that state’s courts, the GOP might not now have its majority in the U.S. House.

If SCOTUS were to adopt the theory, one could anticipate that blue state legislatures would adopt extreme gerrymanders, posing  great danger to the GOP in the next round of redistricting, as young progressive voters continue to swell state voting rolls.

Furthermore, oral argument of the case on the anniversary of Pearl Harbor Day could not have been comforting to the hard-right justices. Chief Justice Roberts pointed to a 1932 case that seemed to negate the theory, and Justice Barrett appeared to be skeptical. It did not seem anyone was able to articulate an approach that could garner majority support. Quite frankly, any decision granting any form of relief to the North Carolina legislature would make SCOTUS look overtly political and legally incompetent.

Compounding these difficulties is the plain fact that Justice Thomas will bring disrepute upon the entire court if he remains on the case and participates in a decision. The problem is not so much with the current dispute over congressional redistricting, but with the higher-stakes danger that adoption of ISLT would pose for the integrity of the next presidential election.

If SCOTUS were to approve the theory, it would give strong support to the scheme that Thomas’s former clerk John Eastman hatched to change the outcome of the 2020 presidential election. Eastman claimed that state legislatures, acting alone, can present alternate elector slates in a presidential election, regardless of the popular vote. Eastman corresponded with Thomas’s wife, Ginni, about the scheme and she, in turn, vigorously pursued it. Eastman even professed to have inside information about a “heated fight” among SCOTUS justices as the scheme unfolded. This documented and publicly available information reeks of impropriety.

Thomas should immediately withdraw from the case because of his glaring conflict of interest. It is inconceivable that he would participate in a case that could give legs in 2024 to the scheme that his wife and former clerk advanced to commandeer the 2020 election. SCOTUS is coming under increasing pressure to adopt a code of conduct, which would include standards for recusal. Thomas’s participation in any final decision of the Moore case would have a devastating impact on the high court’s legitimacy.

So, along comes the NCSC with a handy lifeline that could rescue SCOTUS from the morass. North Carolina is one of those unfortunate states that elects partisan Supreme Court justices. Moore was correctly decided by a Democratic majority, but a Republican majority was elected last November. In an exceedingly rare move, the new court ordered a rehearing of the decision, even though the appeal is still pending before SCOTUS.

The only realistic way to read this development is that the new NCSC intends to find the legislature’s redistricting plan to be lawful. We won’t know for certain until the court rules later this year, but all the smart money anticipates reversal, which would moot the Moore appeal. This gives the SCOTUS majority an opportunity to drop the appeal and avoid having to find a way to write a coherent opinion in a completely meritless case. The justices would also save the embarrassment of Thomas’s refusal to recuse. SCOTUS could either send the case back, saying that review had been improvidently granted, or put the case on hold awaiting NCSC’s determination on rehearing.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.