The Supreme Court rejects independent state legislature theory

Transcript

STEVE INSKEEP, HOST:

Twice in recent days, the Supreme Court has declined to endorse creative interpretations of the Constitution. Both times, the legal theories were embraced by Republican-led states. Both times, they would have given extra power to Republican state officials. In one case, states said they could force the federal government to enforce immigration law in a certain way. By an 8-to-1 majority, the court said no. In yesterday's case, state lawmakers said they could make partisan election rules and courts could have nothing to say about it. By 6-to-3, the Supreme Court said no. Rick Pildes is following all this. He is an elections expert and a professor of constitutional law at New York University. Good morning, sir.

RICHARD PILDES: Good morning to you, Steve.

INSKEEP: Is there something of a theme emerging here?

PILDES: Well, I think what this term is showing is that for those who had a fairly simplistic narrative in their head about the Roberts court, that any case involving voting rights would be one in which the court rejected the claims of plaintiffs, supported the claims of Republican legislatures, this term, you know, indicates that's too simplistic a story. The court has rejected a number of these cases - claims from Republican legislatures - both in the voting rights area and, as you mentioned, in the area of immigration policy.

INSKEEP: Let's talk about this most recent ruling, which is the one having to do with what was called the independent state legislature theory. They - the North Carolina Legislature was basing its argument on a sentence in the Constitution saying that state legislatures shall set up election rules. And they said that means that we have the right to do it. State courts have nothing to say about it. Was there any - in your mind, was there any leg to stand on for that argument?

PILDES: There was a basis for believing the court might accept this claim because several justices in separate statements in the last few years had indicated some support for the doctrine. But I think when the court actually confronted the huge range of implications that would follow from embracing this doctrine, I think the court backed away and reaffirmed what has been the practice throughout our history, which is state legislatures are constrained by their state constitutions, even in the context of regulating federal elections.

INSKEEP: I was interested in reading Chief Justice John Roberts' ruling on this - his opinion on this. He went into the history, as justices always do, especially now, to see what was the context in the early years in the United States. And he says that even before Marbury v. Madison, this famous ruling that people learn about in school, saying that courts have the right to review laws for their constitutionality, this was an American tradition, that it goes back even before that.

PILDES: Yes. This was an interesting case because it actually pitted sort of originalists against textualists. So the argument for this doctrine was based almost entirely on the words of the text of the Constitution that mentioned the state legislature having the power to regulate. But historically, there's been almost no support for this doctrine in practice, and there's certainly no support for it at the time the Constitution was written. So Justice Roberts - Chief Justice Roberts relied on the lack of historical support for the doctrine as a major prong in his analysis for the court as to why the court rejected the strong version of the doctrine at issue in the case.

INSKEEP: I want to ask about another case that's on your mind, I know. There was an Alabama case having to do with redistricting, which fits into this pattern of the Supreme Court pushing back state legislatures, doesn't it?

PILDES: Yes. Just a little while ago, we had another decision from the Roberts court. In that case, the Republican legislature of Alabama was resisting the argument that the Voting Rights Act required the creation of a second ability to elect district for African Americans in Alabama. The court upheld the claim of the Voting Rights Act plaintiffs in that case - so again, rejecting the claim of a Republican legislature in an area of, you know, direct political distribution of power. I'd also mention, there's a whole series of cases in the last decade from the Roberts court - from Virginia, North Carolina, Alabama - similarly rejecting claims of Republican legislatures coming down with decisions that actually furthered the interests of minority voters and, in fact, Democrats. So the story is a little bit more complicated than some of the narrative about the court.

INSKEEP: Can I ask one question from, I guess, the Republican legislator's point of view? I could imagine being a Republican legislator and saying, I - even though you accuse me of going against democracy here and trying to rig the game in my favor, I'm actually for democracy because the legislature was elected and the majority of the legislature voted for this and courts should not get in the way. Is there an argument that can be made from that side of the issue, that state legislatures should just be deciding a lot more things?

PILDES: That is a sympathetic account of the position of the state legislatures in this case. But, you know, again, state legislatures have always had to operate pursuant to their state constitutions. As Chief Justice Roberts says, that has been a foundational principle of the American constitutional system, and this area of law is no exception to that principle. That's the main point of the decision yesterday. The state constitutions continue to constrain state legislatures with - when they're regulating federal elections.

INSKEEP: Rick Pildes is a professor of constitutional law at New York University. It's a pleasure talking with you. Thank you so much.

PILDES: Thank you, Steve. Transcript provided by NPR, Copyright NPR.