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Fair Courts Update: State Chief Justices Weigh in on Independent State Legislature Theory

Also, SCOTUS justices discuss the Court’s legitimacy, and a New Jersey high court nomination moves forward after a 18-month stalemate

Published: September 20, 2022

State Chief Justices File Amicus Brief Addressing Independent State Legislature Theory

On September 6, the Conference of Chief Justices filed an amicus brief urging the Supreme Court to reject a notion advanced by North Carolina lawmakers that would exempt legislatively drawn congressional maps from state court review. 

The conference is composed of the chief justice or judge of the highest courts in all 50 states, D.C., and all U.S. territories. It only files amicus briefs “when critical interests of the state courts are at stake.”

The brief, submitted in support of neither party, was filed in Moore v. Harper, a case that will allow the Court to address the “independent state legislature theory,” a fringe reading of the U.S. Constitution’s Elections Clause that would limit the role of state courts and constitutions in matters relating to federal elections.

In its brief, the conference argues the ISLT is not supported by the Constitution’s text, historical practice, or the Court’s precedent. It also argues the Elections Clause “does not oust state courts from their traditional role in reviewing election laws under state constitutions” and notes that North Carolina’s legislature expressly invited state courts to review redistricting laws in the state constitution.

Justices Roberts and Kagan Comment on SCOTUS Legitimacy as Public Opinion Drops

Public opinion of the Supreme Court has plummeted and become more politically polarized since June, according to a Pew Research Center poll. The partisan gap in views of the Court is the widest it’s been in 35 years: 28 percent of Democrats hold favorable views, compared to 73 percent of Republicans.

Chief Justice Roberts, in his first public appearance since the overruling of Roe, defended the Court at a legal conference in Colorado Springs on Friday, saying, “all of our opinions are open to criticism… but simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Justice Kagan, in public remarks at a New York synagogue on Monday, also discussed the Court’s legitimacy: “I think judges… undermine their legitimacy when they don’t act so much like courts… and when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”

New Jersey Supreme Court Nomination Advances After 18 Months Amidst Statewide Judge Shortage

On September 2, Gov. Phil Murphy, a Democrat, struck a deal with State Senator Holly Schepisi, a Republican, to move forward with his nomination of Rachel Wainer Apter to the New Jersey Supreme Court.

Wainer Apter, a Democrat, was first nominated in March 2021; however, Schepisi blocked her nomination using an unwritten rule that allows senators to veto nominees from their home county or legislative district. Schepisi agreed to lift the block after Murphy agreed to nominate Superior Court Judge Douglas Fasciale, a Republican, to fill another vacancy, maintaining the tradition of partisan balance on the seven-member high court.

This stalemate over Wainer Apter’s nomination is not the only issue facing the state’s courts: Murphy has not yet announced a nominee for a third vacancy on the high court, and there is a historic trial court judge shortage, exacerbated by the unwritten rule of senatorial vetoes and pandemic-related delays during the legislative session. “While there certainly is reason to celebrate, we also need to remember… vacancies in the severely depleted trial court which still are operating at levels that are unacceptable to be able to dispense justice for New Jerseyans,” said the president of the state’s bar association.