SCOTUS will soon decide the validity of the Independent Legislature Theory in Moore v. Harper. Specifically, they will decide whether North Carolina’s [NC] Supreme Court can overrule NC state law when it violates the NC State Constitution and the Constitution’s Fourteenth Amendment’s Equal Protection Clause.
Marbury v. Madison looms large in this SCOTUS review. Marbury established (counterintuitively) that “[i]t is emphatically the province and duty of the judicial department [SCOTUS] to say what the law is,” not the legislature. This ruling was later extended to lower federal courts and state courts like NC. To this day, Marbury remains the law of the land.
Conservatives in the NC legislature now argue that the NC court’s decision to overrule a blatantly prejudicial gerrymandering law was unconstitutional because it violated U.S. Constitution’s Election Clause which they claim vests nonreviewable authority in state legislatures over all election matters.
This argument, however, turns Marbury on its head and asserts that it is the legislature, not the court, that has the power to interpret the law. Marbury, the law of the land since 1808 may be the next major precedent to be overturned or weakened by this court despite 124 years of legal tradition.