New Supreme Court term may be even more partisan

The Supreme Court, which convenes this week, is seen by the public as on a partisan crusade, brushing aside precedents. That perception may be exacerbated in this term.

There is a good chance the Republican justices will eviscerate the voting rights measure that has protected minorities for decades and effectively eliminate affirmative action in college admissions.

The most dangerous threat is a case, brought by North Carolina Republicans, that would give state legislatures unchecked power to gerrymander congressional districts and possibly manipulate presidential results. It could make Trump’s 2020 attempt to steal the election look like a warmup.

Voters have reacted negatively to the Republican court’s decisions, especially ending a half century of abortion protection for women. The Gallup poll reported last week that only 40 percent of Americans approve of the job the court is doing, its worst rating in 50 years of this polling.

Justice Elena Kagan, a Democrat, pointedly warned that judges “create legitimacy problems for themselves … when they stray into places that look like politics.”

One of the first arguments will be over an Alabama gerrymandering which a three-member lower court, including two judges appointed by Donald Trump, unanimously ruled violated the voting rights act. Although the state is more than 27 percent Black, only one of the seven districts has a Black majority. If the court’s Republicans uphold these racially discriminatory lines, it’ll effectively end the 1965 voting rights act.

Also high on the docket is affirmative action challenges to Harvard and the University of North Carolina’s admissions policies. This will be the first affirmative action cases before the three Trump-appointed justices; it will surprise few court watchers if the Republicans reverse earlier affirmative action decisions and lower court rulings on these cases.

The so-called “independent legislature” case won’t be argued until later this year. It would cut state courts and constitutions out of the federal election process; it was considered a fringe theory, but it has been embraced by conservatives recently, including a number of Supreme Court justices, citing the constitution’s clause that the times, places and manner of elections shall be set the legislature thereof.

It’s a misinterpretation, says Michael Luttig, a former federal judge and an icon in the conservative legal community. “There is nothing in the Constitution that supports this theory, and there is abundant evidence in the text, structure and history that the framers never intended to foreclose judicial review, assumed it and provided for it,” he said in an interview.

The political affects would be significant. The North Carolina state supreme court has thrown out blatantly partisan gerrymandered maps. The state is politically purple: Republicans have won three of the past four presidential contests there, while Democrats have won three of the last four gubernatorial elections.

Yet if the Supreme Court accepts the contention by the North Carolina Republican legislature — itself strongly gerrymandered — the GOP would move to create 11 (out of 14 congressional seats) that are securely Republican for the rest of the decade.

It also would contradict previous assertions by the conservative bloc. In deciding that the U.S. Supreme Court didn’t have jurisdiction over congressional redistricting, Chief Justice John Roberts, while noting gerrymandering “may be incompatible with democratic principles,” said there were other recourses. He specifically noted state constitutions could “provide standards and guidances” to state courts on redistricting.

There, of course, would be no redress if the Supreme Court accepts the independent legislature theory that state courts and constitutions have no role in the federal election process.

That also presumably would overturn the 2015 decision when the Supreme Court gave a green light for Arizona’s independent redistricting commission, adopted by voters over the objections of the Republican legislature. There are eight other states that have independent redistricting commissions.

If only legislatures can draw these maps — with no checks or reviews — invariably there would be more partisan, less competitive districts. Democrats as well as Republicans could take advantage, though initially it would redound more to the GOP’s advantage, something the justices must realize.

Without judicial review, state lawmakers would have more ability to establish radical voting rules, making it harder for some groups to vote.

Worst of all, it could be a license to steal a presidential election, with the power to choose presidential electors. Judge Luttig observes: “The theory, as it applied to the Electors Clause, was the centerpiece of the (Trump) plan to overturn the last  election.” He said, “If the courts adopt this theory, unlike in 2020 not only would it be easier to overturn the 2024 election, it will be lawful to do so.”

Luttig’s conclusion: “The independent state legislature theory represents a grave threat to American democracy.”

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for The Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.