Today, the Supreme Court’s OT2022 term came to a close, with the issuance of its last three decisions:

  • 303 Creative LLC v. Elenis (No. 21-476), where the Court held 6-3 that the First Amendment bars Colorado from using its public-accommodations law to require a website designer to create wedding websites for same-sex couples, because that would compel her to “speak” contrary to her personal opposition to same-sex marriage; and
  • Biden v. Nebraska (No. 22-506), and Department of Education v. Brown (No. 22-535), where the Court held that individual borrowers did not have standing to challenge the Biden Administration’s student-loan forgiveness plan, but the State of Missouri did, and that plan exceeded the Secretary of Education’s authority under the Higher Education Relief Opportunities for Students Act of 2003.

We’ll have more thorough coverage of these and all the rest of this week’s decisions soon, including a special Update thoroughly analyzing yesterday’s opinions in Students for Fair Admission, Inc. v. President and Fellows of Harvard College (No. 20-1199).

Today, though, we have a summary of Tuesday’s decision in Moore v. Harper (No. 21-1271), where a six Justice majority rejected the “independent state legislature” theory, at least in its strongest form, thus allowing state courts to continue to review the constitutionality (under their state constitutions) of state election laws. At the same time, the Court left open the possibility that state courts’ interpretations of their own constitutions could sometimes be so egregious as to violate the federal Constitution, without providing much guidance as to when that might happen.

Many commentators worried that Moore v. Harper (No. 21-1271) could radically reshape American democracy. Others thought it would come to nothing, being unceremoniously dismissed as moot. Both groups were wrong. Instead, Moore weakened, but did not entirely kill off, the so-called independent state legislature theory. Under that theory, only state legislators—and not state courts—have the power to regulate federal elections in their states, including the power to divvy up the state into congressional districts, and so (the theory goes) state courts violate the federal constitution if they declare state legislative action unconstitutional under their state constitutions. Writing for a majority of six, Chief Justice Roberts rejected that theory, at least in its strongest form, holding that state courts have the power to interpret state constitutional and statutory law governing federal elections. But that power is not limitless, and the Court’s majority opinion warned that state court decisions that go too far could indeed violate the federal constitutional provisions giving legislatures the authority to pass laws regulating federal elections.  

Aftert the 2020 census, the North Carolina legislature, controlled by Republicans, redrew the federal congressional map, allegedly to maximize the odds of Republicans being elected. That posed no federal constitutional problem, because Rucho v. Common Cause (2019)concluded that claims of partisan gerrymandering are not justiciable. But voters and other plaintiffs nonetheless sued, arguing the partisan gerrymander violated North Carolina’s state constitution. The North Carolina Supreme Court initially agreed, concluding both that the gerrymandered districts violated the state constitution and that the federal constitution did not give state legislators “exclusive and independent authority” to draw congressional maps unchecked by state-court review. It thus struck down the 2021 congressional map and remanded the case for the trial court to oversee the legislative redistricting or, if necessary, to redraw the map it itself. After denying emergency relief, the U.S. Supreme Court granted cert. The legislature quickly (read: two days later) offered another map, which the trial court rejected, replacing it with one drafted by a special master.

In the meantime, the case proceeded in the North Carolina courts. Shortly after the remand, the Republican-controlled legislature quickly offered up another map, which the trial court rejected, replacing it with one drafted by a special master. That decision then went up to the North Carolina Supreme Court, which affirmed the trial court’s remedial decision in December 2022 (after cert had been granted). But state elections for the North Carolina Supreme Court (an elected body) soon flipped the composition of the court from a Democratic majority to a Republican one. The Republican legislators then sought rehearing, asking the (new) state supreme court to “withdraw” its second opinion (which had approved the special master’s map) and “overrule” its first decision, which they admitted would not reinstate the 2021 map. While the case was awaiting decision in the U.S. Supreme Court, the newly flipped North Carolina Supreme Court chose to rehear the case and then withdrew the opinion approving the special master’s map. It also overruled its first decision, holding that partisan gerrymandering claims were nonjusticiable under North Carolina’s constitution too. Importantly, though, the court didn’t bring back the 2021 map that it threw out in its first decision, and it didn’t reconsider the independent state legislature theory rejected in the first decision.

As a political matter, not bringing the back the 2021 map didn’t matter, because the Republican legislature could draw the same map again. But to the Court’s majority—Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson—that step prevented the case from becoming moot. The voters had sued to nix the 2021 map. The North Carolina Supreme Court had granted that relief and rejected the independent state legislature theory that would have allowed the map to stand. While that court later gave the legislature the power to redraw the map as it wished, free from future court interference, the fact that it didn’t reinstate the 2021 map meant that if the North Carolina Republican legislators challenging the North Carolina Supreme Court’s first decision in the U.S. Supreme Court were right about the independent state legislature theory, then the 2021 map would have to be reinstated. To the majority, that meant there was a live case or controversy.

For three dissenters, led by Justice Thomas, this made no sense. The North Carolina Supreme Court had fully resolved the case after cert was granted, giving the legislature everything it wanted, so the case should’ve been dismissed as moot. To be sure, Justice Thomas noted, everyone agreed that although the U.S. Supreme Court can’t ordinarily review non-final judgments from state high courts, there’s an exception for decisions when a federal issue in the case will “survive and require decision regardless of the outcome of future state-court proceedings.” And true, the Court thought that would happen when cert was granted. But, Justice Thomas noted, that guess proved wrong when the North Carolina Supreme Court reversed itself and gave the legislature everything it wanted under state law, rendering the federal question—the validity of the independent state legislature theory—irrelevant. Because the legislature was no longer injured, and nothing the U.S. Supreme Court could do would fix anything, the dissenters would have dismissed the case as moot.

Having found the controversy real and live, Chief Justice Roberts’s majority opinion turned to the central question: Does the U.S. Constitution’s Elections Clause, which gives “the Legislature” of each state the authority to prescribe “the Times, Places and Manner of” federal elections “insulate[] state legislatures from review by state courts for compliance with state law”? To answer that question, the Court reviewed the long history of judicial review, invoking Marbury and then canvassing state practice before and after the Constitution was ratified, as well as secondary sources (including the obligatory Federalist quote). All of those sources, Roberts concluded, showed that the framers knew that state courts reviewed state statutes for compliance with state constitutions. The Elections Clause did not displace this basic principle. Reviewing over a century of prior cases, the Court found that “Legislature” means more than just legislators: the Elections Clause did not disempower a state referendum, or a governor’s veto, either of which could determine the state’s approach to federal elections. States thus have “autonomy to establish their own governmental processes,” and judicial review—including state constitutional review of state statutes governing federal elections—is a permissible part of that process. Because state legislatures are “mere creatures of” the state constitutions that establish them, nothing in the Elections Clause overrides the constraints those state constitutions impose on state legislators’ power.

While Justices Thomas, Alito, and Gorsuch dissented on mootness, Thomas (joined only by Gorsuch) also dissented as to substance. “The Legislature” does mean just legislators, he concluded, unless a state constitution is written to include more than that—which it was, he thought, in the cases the majority cited. Thomas also concluded it was inappropriate to rely on the ratification and gubernatorial-veto cases, as they involved state procedural limitations on the legislature’s authority, not substantive one. (Roberts countered that none of the Court’s prior decisions distinguished between substantive and procedural limitations, and the line between them was “hazy” at best.) Thomas also noted that the Court had previously rejected state-law challenges to ratification of the Nineteenth Amendment, because state legislatures ratifying a federal constitutional amendment were exercising a federal function that “transcends” any state-law limitations. (Roberts dismissed that too, arguing that those cases involved state legislative actions of consent or ratification, which are different from the lawmaking function that state legislators exercise when enacting election statutes.)

While the Court rejected the strongest form of the independent state legislature theory, it did not kill off entirely the idea that there are limits on state courts’ judicial review of state legislative action in the elections arena. State courts can issue binding opinions on state constitutional and statutory provisions addressing elections, including federal elections, but those “state courts do not have free rein,” the Court warned: They may not “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” And when do state courts go that far? Roberts wouldn’t say. He canvassed other places where state courts’ interpretations of state law intersected with federal constitutional guarantees, such as the Takings Clause, the Contracts Clause, and—in the election context—Bush v. Gore, where both the concurring and dissenting justices described how to determine when state courts interpret state law so “as to circumvent federal constitutional provisions.” But the Court adopted none of those, explicitly refusing to establish any “test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.” Instead, Roberts simply observed that the “questions presented in this area are complex and context specific,” and warned only that state courts must remain within “the ordinary bounds of judicial review.” Justice Kavanagh penned a short concurrence endorsing one test—the one that Chief Justice Rehnquist had offered in Bush v. Gore—but no one joined him. Indeed, he doubted that the formulation of any test, including his, would determine the outcome of any case.

This leaves the door open to challenges to state courts’ application of state law to federal election regulation, and it gives lower courts no way to tell when a state court is doing its constitutionally sanctioned job of judicial review, instead of arrogating legislative power to itself. As Justice Thomas (for himself and Justice Gorsuch) asked, “What are ‘the bounds of ordinary judicial review’? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion?” Most of the time, Thomas predicted, federal courts will defer to state courts’ exercise of judicial review, accomplishing nothing but swollen federal court dockets. But exceptions “will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution.” For the Court, that possibility was better than the alternative, which was entirely erasing state courts—and state constitutions—from the equation.