Dissent Episode Two: Judicial Adventurism

The Intercept Briefing

The Intercept

Politics, Unknown, Daily News, History, News

4.8 • 6.3K Ratings

🗓️ 25 January 2023

⏱️ 55 minutes

🔗️ Recording | iTunes | RSS

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Summary

The North Carolina Supreme Court rejected a partisan gerrymandered congressional map drawn to heavily favor Republicans last year. The map violated the state’s constitution. The North Carolina legislature is now arguing before the U.S. Supreme Court whether the state legislature has the authority to override the court and ignore its own constitution. The case, Moore v. Harper, raises the prospect of the independent state legislature theory — a fringe theory that, if the Supreme Court rules in favor of, would give state legislatures unfettered authority, remove checks and balances, and undermine future elections. In the second episode of Dissent, host Jordan Smith and Elizabeth Wydra of the Constitutional Accountability Center closely examine oral arguments and unpack how a favorable or even a middle-ground ruling would radically change elections.

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Transcript

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0:00.0	I'm Jordyn Smith, a senior reporter for the Intercept.
0:08.6	Welcome to Descent, an intercepted miniseries about the Supreme Court.
0:19.6	There's three Federalist papers on the Elections Clause, not a word, anything like this.
0:24.2	What he would do is gut the ordinary checks and balances.
0:27.5	And so to me, it's not so much the sort of troubling worry of we have the state legislature violating federal constitutional law,
0:36.2	because we as the Supreme Court and other courts in the federal system can look at that,
0:42.5	because it's a question of did they violate the federal constitution?
0:46.2	Here he's saying, no, we do have to comply with the federal constitution.
0:50.1	What we can violate is the state constitution.
0:52.9	And what I don't, I can't wrap my mind around that argument.
0:57.0	I can't either, Yonner, and Shelby County.
0:58.9	Listening to the more v. Harper Oral arguments about this notion of an independent state legislature,
1:04.9	I like Justice Katangi Brown-Jackson and former acting U.S.
1:09.8	solicitor General Neil Cotill could not wrap my mind around the logic of the case.
1:16.2	As U.S.
1:16.8	solicitor General Elizabeth Pre-Logger also argued, the theory before the Supreme Court would so chaos in state and federal elections.
1:25.4	Throughout our nation's history, state legislatures enacting election laws have operated within the bounds of their state constitutions,
1:33.1	enforced by state judicial review.
1:35.9	This practice dates from the Articles of Confederation, and the framers carried it forward by using parallel language in the elections clause
1:43.4	to assign state legislatures a duty to make laws.
1:47.6	Text, longstanding practice, and precedent to show that the elections clause did not displace this ordinary check on state law making.
1:55.4	Petitioners contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation.
	...

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