It is one thing when a high court distorts the meaning of a statute or a constitutional provision to achieve a certain goal (see Roe v. Wade and Obergefell v. Hodges for starters), but it is categorically worse when a court blatantly usurps the power of the other branches of government. Bad activist legal decisions are a dime a dozen, but some deserve special attention.

On August 19, the North Carolina Supreme Court issued a decision in N.C. NAACP v. Moore. Everyone who cares about our constitutional republic should take notice. The court summary of the question at issue was “whether a General Assembly composed of legislators elected pursuant to legislative districts that had been determined to be unconstitutionally racially gerrymandered possessed the authority to initiate the process for amending the North Carolina Constitution.” 

A bit of background is helpful here. The federal courts previously ruled in a series of cases called Covington v. North Carolina that the state’s redistricting plan contained racially gerrymandered districts that violated the Equal Protection Clause. Since the districts were already set, there was a question about when and how the legislators representing those districts should be replaced. Subsequently, on remand the court in Covington ruled that the legislators in the gerrymandered districts could not be replaced early in special elections but would serve the remainder of their terms.

In a sane world, legislators are either elected, sworn members of their legislature with all the powers entrusted to them by their constitution, or they are not. But the North Carolina Supreme Court came to a very different conclusion in Moore. 

The majority opinion in Moore acknowledges that legislators elected from unconstitutional districts continue to serve in legislatures all the time. But the Court insists that 

what makes this case so unique is that the General Assembly, acting with the knowledge that twenty-eight of its districts were unconstitutionally racially gerrymandered and that more than two-thirds of all legislative districts needed to be redrawn to achieve compliance with the Equal Protection Clause, chose to initiate the process of amending the state constitution at the last possible moment prior to the first opportunity North Carolinians had to elect representatives from presumptively constitutional legislative districts.

The Court then goes on to devote nearly 60 pages to a tortured journey down a rabbit hole of unnecessary distinctions, pondering when a legislator is a de jure officer, a de facto officer, a usurper, or a de facto officer with the power to do some legislating but not the really important stuff. 

I don’t like to be flippant when analyzing the work of judges, but this has to be called out for what it is. If the Covington ruling that the districts were unconstitutional completely delegitimized those districts' legislators, they would be usurpers who needed to be immediately stripped of all powers and removed from office. Since that was not the case, the only sane option is that they remain legislators who can, you know, legislate. The creation of quasi-legislators who are reluctantly left in power but cannot make certain important decisions is arbitrary and has no basis in law.

This is typical activist judging: determine that an outcome is unacceptable, admit that ordinarily judicial power would not reach far enough to remedy this type of situation, hold that this particular situation is uniquely bad, then find a way to legally justify the desired outcome with a lengthy judicial opinion.

Good work has already been done on the analysis of this case; Ed Whelan provides an excellent take on the legal shortcomings of the Moore decision at National Review. I write not so much to add to the legal analysis as to emphasize that this is a uniquely unprecedented and dangerous decision.

Put aside the above argument that this decision creates an absurd second-class legislator who can sometimes validly legislate but cannot make major decisions on matters such as constitutional amendments. Put aside also the fact that Justice Anita Earls, who wrote the majority decision, was an attorney representing the plaintiffs in the series of Covington cases. These instances would not make the case stand out as worthy of national attention in a sea of similarly activist case law. There is something far worse lurking behind the Moore decision.

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The reasoning above is bad, but the implication of the Court's ultimate holding on separation of powers that is truly frightening. The outcome in the case is that the “acts proposing constitutional amendments passed by a legislature composed of a substantial number of legislators elected from unconstitutionally racially gerrymandered legislative districts, after the unlawfulness of those districts has been conclusively established, are not automatically shielded by application of the de facto officer doctrine.” In short, if the court thinks that enough legislators in a legislature represent “unconstitutionally racially gerrymandered” districts, that legislature might no longer have the power to propose constitutional amendments. 

A precedent has just been set in North Carolina that, if the Court finds enough racism or political tampering in the creation of legislative districts, the Court may have the ability to void constitutional amendments passed by that legislature. Conservatives have been dismayed for decades that the courts either strike down conservative statutes by claiming they are unconstitutional or interpret constitutional provisions in ridiculous ways to achieve policy ends. But in those cases, the courts are at least paying lip service to the fact that their highest authority is their constitution. Something different has happened here. The Court has actually managed to say that, in certain circumstances, it may throw out portions of the constitution, if those portions were passed by enough legislators the Court deems illegitimate.

The left likes to picket, riot, and incite violence in the face of such adverse political and legal outcomes. Conservatives should not follow suit, but we should be no less aggressive in taking action. This decision should be reviewed by the U.S. Supreme Court, and every conservative legal operation should get involved in that case. Other jurisdictions should openly refuse to follow such a dangerous precedent. And the people of North Carolina should impeach the N.C. Supreme Court justices who have dared to tell them their duly elected representatives may not amend the constitution if the high court doesn’t like the circumstances surrounding the amendment process. The courts are bound by their constitutions. They should have no voice in the political process that creates or amends those constitutions. If the separation of powers doesn’t mean that, it doesn’t mean anything. And then we are all in trouble.