LEILA FADEL, HOST:
The Supreme Court's most recent rulings have sharpened an already stinging partisan divide. Still to come are potentially even more divisive rulings. The court hears Moore v. Harper in the fall, a case that will decide whether the North Carolina Supreme Court can strike down a redistricting map because of partisan gerrymandering and whether state legislatures can draw voting districts independent of the courts. I asked New York University constitutional law professor Melissa Murray about the broader implications.
MELISSA MURRAY: I'm not surprised that this is a case that they took up. It had been floated during the 2020 election, especially in the wake of the electoral count, when there was a lot of discussion about whether there had been fraud in the conduct of that election and whether state legislatures might be authorized to advance their own slate of alternative electors to the Electoral College.
FADEL: Now, just to be clear, no actual widescale fraud was ever found out of all these theories out of 2020.
MURRAY: That's sort of the irony of all of this. What has fueled the interest in the independent state legislature theory/doctrine/fantasy is this idea that state legislatures are needed to step in because there are all of these questions about the integrity of elections. But that's just not the case. I mean, that is very much...
FADEL: Right.
MURRAY: ...The big lie, and so you know, here, we have the court making, I think, what will be a move to not only make this a theory, but actually make it doctrine.
FADEL: So how would it impact elections? The midterms are coming up. If the Supreme Court made this doctrine, how does this impact elections?
MURRAY: Well, I think we'll already begin to see some of the fallout from this. So you know, in this particular case, the question is going to be whether state courts have the authority to review the state constitution to impose limits on electoral policies that disenfranchise voters, for example, like partisan gerrymandering. So this could have very real consequences on the ground that make it harder for certain members of the polity to register their participation in the democratic process.
FADEL: And this court is a very different court than the 2015 makeup that - even the 2019 makeup.
MURRAY: We are emerging at the end of a Supreme Court term that I think has been one of the most extreme terms in the court's history. I think we are really feeling the effects of a 6 to 3 conservative supermajority that has not only overruled Roe v. Wade, but it's offered us a more expansive vision that might very well diminish the separation of church and state that the establishment clause protects. And it is a supermajority that has the numbers and it seems has the will to rethink a lot of things that we had previously thought settled. So we just overturned a precedent that was almost 50 years old. I don't know that this court would necessarily look askance at revisiting things that they had said in 2019 or 2015.
FADEL: You know, the 2020 election was rife with conspiracy theories that ultimately are falsehoods that a lot of the country now believes. And yet this decision is coming out of a lot of the questions that were raised then?
MURRAY: So the 2020 election was really a proving ground for the independent state legislature theory/doctrine. You know, a number of Trump allies tried to raise this theory, particularly in the cases that were being litigated in Pennsylvania around absentee ballots that were cast because of the COVID pandemic. And so you know, this is a way, especially in some of these states where, you know, there may be gridlock in the state legislature or the state legislature may be tilted to one partisan extreme, this can be a way to limit opportunities for voters to actually have an opportunity to cast their ballot. So it is an increasingly on the wall theory that once was off the wall, but I think that's sort of the nature of all of this.
FADEL: Which is why so many people are concerned about future voter suppression.
MURRAY: Not just voter suppression, but the idea that the entire apparatus of the elections could either be changed by state legislatures or there could be no real apparatus to facilitate the vote, right? So I mean, it is both a question of overreach and excessive action, and also the possibility of inaction, all of which has the impact of limiting who participates in an election cycle.
FADEL: Now, you described this last term for the Supreme Court as one of the most extreme. From the decision on Roe v. Wade, what are you expecting in the term to come in the types of cases they'll be taking up?
MURRAY: I don't think we've ever seen the likes of a term like this. It really has been every kind of divisive issue this court has taken up - guns, abortion, school prayer. And next term doesn't look like it will be any less contentious, right? So affirmative action is going to be before the court. This question about independent state legislatures are going to be on the court's docket as well. There's also going to be a lot of questions about business regulation and whether or not the administrative state can take steps to regulate in various aspects of our lives.
So the court's docket is largely discretionary. Millions of petitions are filed. And the court doesn't take them all, right? It takes only those that they think that need to be decided because there is some contentious debate or split among different circuits. And I think when we had a 5 to 4 conservative, bare conservative majority, you saw the court exercising more restraint about the cases for which they granted certiorari because they couldn't be sure where the fifth vote was coming from. Now that they have six conservatives, that concern about where the necessary fifth vote is coming from just isn't there anymore. And for that reason, I think we are seeing them be more assertive and more aggressive about the kinds of cases they're willing to take up. A 6 to 3 supermajority not only means we are getting more conservative outcomes, it means we're getting a more conservative docket.
FADEL: Melissa Murray is a law professor at New York University. Thank you so much.
MURRAY: Thank you. Transcript provided by NPR, Copyright NPR.
