In recent years the U.S. Supreme Court has repeatedly invented novel justifications for the expansion of its powers. It is not a “conservative” court. Conservatives do not invent the law. They adhere to it. It is instead a “radical activist” court.
The court’s first target was Congress. It pulled out of its magician’s hat the idea that the federal government cannot use money to coerce the states, and so allowed states to opt out of the Affordable Care Act. Some did, and millions of working people who do not make enough to afford private health insurance have suffered.
More recently the Supreme Court knee-capped federal environmental regulation by offering up a novel “major questions doctrine” that limits Congress’ ability to delegate power to administrative agencies where questions are presented that the court deems, in retrospect, to be of “major social and economic” importance.
The Supreme Court has also taken aim at the states. In hocus-pocus fashion it said that states cannot enact gun control legislation that interferes with a right few people thought existed until the Supreme Court discovered it, an individual’s federal right to bear arms. The Second Amendment expressly says the “state” can regulate guns, but the court said that word does not really mean one of the 50 states. Even the Supreme Court’s recent purported delegation to the states of the right to regulate abortion will be short-lived, because the logical consequence is that the court will now have to decide at what point after conception a “person” with federal constitutional rights exists.
In its most recent rulings, the Court has given itself yet another power. That power is to decide whether state courts interpreting the state laws that govern federal elections have so “impermissibly distorted” state law that the federal courts can overrule their decisions. That is a radical notion. Federal courts are supposed to defer to state courts where state law is concerned. The notion could not command a majority in the infamous Bush v. Gore decision in 2000, but in a recent case from North Carolina the Supreme Court has made it, or something like it, a new principle of federal law.
In Bush v. Gore, a five-to-four decision, the Supreme Court stopped a Florida vote recount and so awarded the 2000 presidential election to George W. Bush. All of the five in the majority had been appointed by Republican presidents. They said it violated the federal constitution’s equal protection clause for the Florida Supreme Court to order a recount in which different districts might use different standards. That logic was so contorted that not a single decision in the past 24 years has relied on it. Justice Sandra Day O’Connor, who voted with the majority, later said it might have been a mistake for the Supreme Court to get involved in the dispute.
In that case, however, Chief Justice William H. Rehnquist and two others offered a different reason for federal interference. They said that because the federal constitution gives control over federal elections to state “legislatures,” the federal court could set aside a state supreme court order that “impermissibly distorted” state law “beyond what a fair reading required.”
Chief Justice John Roberts, one of George W. Bush’s lawyers in 2000, wrote the opinion in the recent case of Moore v. North Carolina. His opinion now elevated that notion, or something similar, to the status of federal law, thus ensuring that federal courts will now have the power to monitor state court interpretations of a state’s own election laws. In other words, the Supreme Court will have the power to repeat the Bush v. Gore partisan debacle.
The news media missed the significance of the opinion because it focused only on the outcome. The North Carolina Supreme Court said its legislature’s gerrymander of Congressional districts violated state constitutional provisions that, among other things, said political power belonged to the “people” and elections should be “free.”
The U.S. Supreme Court opinion let that ruling stand. The court at great length rejected the argument that a state court should have no say in what a legislature has done. It cited overwhelming historical support for the proposition that state courts can exercise the powers given to them by the same state constitutions that create the legislatures.
But in closing it reached out to address a different argument. It quoted Chief Justice Rehnquist’s 2000 opinion and said that in the future it would have the authority to determine whether a court like the North Carolina Supreme Court had impermissibly interpreted its own state constitution. But the Supreme Court said it did not have to decide what standard should apply because the parties had not argued whether the state court had erred in interpreting the North Carolina constitution.
The courthouse door is now open for the Supreme Court to resolve state law disputes over Congressional and presidential elections. The court opened the door by addressing an issue the parties did not argue and by adopting an argument for which the only precedent was a 24-year old concurring opinion in a controversial case.
Whatever you want to call this court, it cannot be called “conservative.”
Luther Munford is a Northsider.
