Moore v. Harper, a lawsuit the Supreme Court heard last December, poses the biggest threat to US democracy since the January 6 attack on the US Capitol — although it’s worth noting that even some of the Court’s more conservative members seemed to recoil at some of the case’s implications when they heard oral arguments in Moore in December.
On Thursday, the justices signaled that they are likely to take an off-ramp from this case. The Court released a brief, one-paragraph order indicating that this case may simply disappear.
Moore rests on an awkwardly named legal theory, known as the “independent state legislature doctrine,” which claims that state lawmakers have expansive and potentially unchecked authority to write election laws that favor their preferred federal candidates.
Under the strongest version of this theory, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state, a power potentially so broad that it could effectively be used to hand victory to a particular candidate.
That said, during oral arguments in December, a majority of the Court appeared to reject this most aggressive version of the doctrine. But most of the justices did appear open to weaker versions of the independent state legislature theory. And even under these narrower readings, the Supreme Court — with its 6-3 Republican-appointed supermajority — could give itself sweeping and unprecedented authority to decide the winner of congressional and presidential elections.
But, as Thursday’s order suggests, the Court may no longer have the lawful authority to hear the case. The new order references a federal law which provides that, under certain circumstances, the justices may hear an appeal from “final judgments or decrees rendered by the highest court of a State.”
In the Moore case, Republican lawmakers in North Carolina challenged a state supreme court decision striking down gerrymandered congressional maps. These plaintiffs argued that this decision, which was handed down by a court with a Democratic majority, was improper because the independent state legislature doctrine gives the legislature — and not the state supreme court — primacy over the rules governing federal elections.
In the 2022 elections, however, Republicans regained control of the North Carolina Supreme Court. Not long after the new Republican justices were seated, the court announced it would rehear the lawsuit striking down the gerrymandered maps.
But, if the state supreme court no longer stands by its earlier decision in the Moore case, that suggests this earlier decision is not a “final judgment or decree” handed down by the highest court of the state. The North Carolina Supreme Court’s final judgment will be whatever decision its new majority hands down, not the one handed down previously.
And that means that the US Supreme Court most likely will not decide the Moore case. In the likely event that the Court does get rid of the Moore case, that will probably only delay Supreme Court review of the so-called independent state legislature doctrine.
During the 2020 election, four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — all endorsed versions of the independent state legislature doctrine and appeared eager to fundamentally rewrite much of American election law. The Court has repeatedly rejected this independent state legislature theory over the course of more than a century, but the doctrine started to gain steam as former President Donald Trump filled the Supreme Court with hardline conservatives.
If the Court does get rid of this case, in other words, conservative litigants are likely to still try to raise the independent state legislature doctrine in future cases.
But dismissing this one could also give more time for cooler heads to prevail upon the justices. Because as time passed, supporters of American democracy organized, too. And they even recruited several prominent Republicans and legal conservatives to urge the Supreme Court not to sign onto this attack on voting rights. At oral arguments in Moore, Justice Amy Coney Barrett, a Trump appointee whose vote is likely to be decisive if the Court does decide the Moore case, seemed to step back from the more extreme arguments justifying the independent state legislature doctrine.
That said, if the Court gets rid of Moore, that also raises the likelihood that this issue could arise again, perhaps in the midst of a high-stakes dispute that could decide the winner of the 2024 presidential election.
In any event, Thursday’s order suggests that we may not know, for at least a little longer, how a majority of the justices will approach this issue.