"The North Carolina Legislature" is not the plaintiff in the new Moore v. Harper case. That is the case in which Justice Alito is going to say that his "independent state legislatures" theory, which he shares with some others, is a doctrine. (It is not a doctrine. It has not even made it into a majority opinion on the Supreme Court yet, surfacing so far only in a concurrence or on the shadow docket a time or two, and it has been rejected by name in other concurring opinions.)
Moore showed up on the shadow docket earlier this year, which is when Justice Alito called the plaintiffs in the case "the North Carolina Legislature." (Moore v. Harper's shadow docket appearance was discussed in Supreme Power, an article that was published at the time on Insurance Claims and Bad Faith Law Blog.) The plaintiffs in Moore are the speaker of the North Carolina House of Representatives, and a handful of state senators. There are very few of them. There is no President of the North Carolina Senate among them. There are no Democrats among them. By any stretch, these plaintiffs in Moore are certainly not "the North Carolina Legislature."
When Justice Alito wrote to remove a woman's privacy rights whether or not to have an abortion in Dobbs v. Jackson Women's Health Organization, he said a couple of times that the Supreme Court does not like to look at what only a few legislators have to say about a topic. He wrote, "This Court has long disfavored arguments based on alleged legislative motives." He also wrote in Dobbs, "The Court has recognized that inquiries into legislative motives 'are a hazardous matter.'”
Justice Alito also quoted a decision that the Court made in 1963:
Even when an argument about legislative motive is backed by statements made by legislators who voted for a law, we have been reluctant to attribute those motives to the legislative body as a whole. “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”
So what's different now? Not a thing. Except that calling one state representative and a couple of state senators "the North Carolina Legislature" makes it seem like what Justice Alito and his colleagues are about to do in Moore v. Harper, comes in response to a request of the entire North Carolina Legislature. It doesn't. It won't.
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