Justices may duck two big cases
Two of the most consequential Supreme Court cases this term may fizzle out, recent orders from the justices suggest, meaning the court might not rule on the role of state legislatures in conducting federal elections or on whether Republicanled states may challenge a pandemic-era immigration measure.
The end of the term, probably in late June, still will be busy, with the court poised to deliver decisions on affirmative action, a clash between gay rights and claims of religious liberty, the scope of a law protecting internet platforms and the Biden administration’s plan to cancel more than $400 billion in student debt.
But the justices may dismiss two of the thorniest questions before them.
In the case on state legislatures, the U.S. Supreme Court hinted it might not render a decision after control of the North Carolina Supreme Court shifted.
The case arose froma decision by the state Supreme Court last year to block North Carolina’s congressional voting map, drawn by Republican lawmakers, as an unconstitutional partisan gerrymander under the state constitution.
North Carolina selects its justices in partisan elections. The court that issued last year’s decision included four Democratic justices and three Republican ones, and it split along party lines.
The Republican lawmakers appealed to the U.S. Supreme Court, saying the state court was not entitled to second-guess the legislature, citing a clause of the federal Constitution that says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
The lawmakers argued that the reference to the legislature meant the state court had no role to play, at least when it applied state law. This idea is called the independent state legislature theory.
When the U. S. Supreme Court heard arguments in the case in December, the justices seemed divided, if not fractured, over the theory in its strongest form.
Justice Samuel Alito asked a telling question: “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”
Indeed, the composition of the North Carolina Supreme Court changed after elections in November, now favoring Republicans by a 5-2 margin. In what a dissenting justice called a “display of raw partisanship,” the court split along those party lines last month and ordered a rehearing of the gerrymandering dispute, scheduling arguments for March 14.
The U.S. Supreme Court last week took notice of the development, asking the parties to file briefs on whether it has jurisdiction to rule in the case in light of the rehearing order or “any subsequent state court proceedings.” Those briefs are due in two weeks.
The Supreme Court may await a ruling from the state court before it acts.
In the immigration case, concerning the pandemicerameasure known as Title 42, the justices seem likely to wait until May to decide whether to dismiss it.
The court last month canceled arguments in the case after the Biden administration announced that the health emergency that had been used to justify Title 42 would end May 11.
“Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case,” Solicitor General Elizabeth B. Prelogar wrote in a brief filed early last month.
The court’s action indicated that it was inclined to agree and that, barring other developments, it would dismiss the case and lift a stay that had kept the measure in place.
Title 42 has allowed migrants who might otherwise qualify for asylum to be swiftly expelled at the border with Mexico. The policy, introduced by the Trump administration in March 2020, has been used to expelmigrants— includingmany asylum-seekers— about 2.5 million times.
Should the court dismiss the cases on voting and immigration, which seems a distinct possibility, a term that had seemed especially momentous will become a little less so. But cases that broach related issues will remain on the docket.
One centers on whether Alabama lawmakers violated the Voting Rights Act by diluting the power of Black voters. At issue in the other are the Biden administration’s immigration enforcement guidelines that had set priorities for deciding which immigrants lacking permanent legal status should be arrested and detained.