Some say that the current majority of the U.S. Supreme Court has a tendency to reach a chosen result regardless of the law. Some even call them the Gang of Six.
Whatever they may be, something they have recently done, or more accurately, something that four of them have done, caught my eye. What they did came in the case of Moore v. Harper, 595 U.S. ___, No. 21A455, 2022 WL 667937 (U.S. March 7, 2022), in which a majority of the Court denied an application by the North Carolina Speaker of the House and some of his colleagues to stay the ruling of the North Carolina Supreme Court that the Congressional districts drawn by the North Carolina Legislature violated various provisions of the North Carolina Constitution.
The four U.S. Supreme Court Justices were led by Justice Samuel Alito who wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch. The fourth Justice, Brett Kavanaugh, concurred in the denial of the stay but agreed with the others that the Court should review the districting issue on the merits when and if a petition for certiorari is ever filed in the future.
The reasoning of the four reached only one of the four reasons that Justice Alito listed for the result in the North Carolina Supreme Court, which were, he wrote, "a congeries of state constitutional provisions." The provisions of the North Carolina Constitution which were violated by the districting conduct of the North Carolina Legislature were Equal Protection of the Laws including No Discrimination By the State Because of Race, Color, Religion, or National Origin; Freedom of Speech and of the Press; Freedom to Assemble and to Petition for Redress of Grievances; and that "[a]ll elections shall be free." To say again, the four U.S. Supreme Court Justices addressed only one of these.[1]
The one provision of the North Carolina Constitution which they addressed was the only one of these provisions that has no direct counterpart in the United States Constitution, namely, the provision that all elections shall be free, N.C. Const. art. 1, § 10. In addressing this one provision, the four took the position that the North Carolina Legislature presented a "stronger" argument than the North Carolina Supreme Court partly because this was really a question of Federal law which, they implied, preempts State Constitutions in respect to how the laws are carried out in the States including, in this case, drawing districts in which to vote for candidates for Congress.
This raises a question that is still playing out in my mind: If a current majority of the U.S. Supreme Court decides that insurance bad faith cases and claims, which are all creatures of State law, should somehow be prevented or regulated, how would they do it? Well, I know how they would do it, I suppose, but what would they say were the reasons they did it?
It is not a huge leap at all in my mind, from interfering with State Constitutions and State Supreme Court decisions, to interfering with State Courts which in many cases have fashioned new causes of action for insurer bad faith. For that matter, it is not a far distance to interfere with State Legislatures which have enacted statutory provisions for remedies that can be claimed against alleged insurer bad faith.
So, what might they say? Perhaps they would rule on the pretext of Interstate Commerce. There may be an argument that insurer bad faith cases affect the business not only of insurance companies operating across State lines, but of other companies as well. These can include business policyholders, or interstate businesses providing claim-related services such as adjusting.
Or perhaps they might rule on the pretext of Due Process. State insurer bad faith causes of action may deprive corporations of their asserted "right" to arbitrate rather than litigate such claims. Or perhaps it could be so argued.
Or perhaps on the pretext of Equal Protection. The argument might be accepted that the States have only made special causes of action available against insurance carriers, and by and large the States have not made special causes of action available against policyholders.
There are many possibilities in a congeries[2] of possibilities, to refashion a phrase chosen by Judge Alito in the Moore case, supra, in which he wrote to announce that he would have stayed the North Carolina Supreme Court's decision that the North Carolina Legislature violated provisions of the North Carolina State Constitution. As we have seen from recent events, there is more to come whether we expect it or not, and at this point, whether we like it or not.
Please read the disclaimer. ©2022 Dennis J. Wall. All rights reserved.
[1] Without distracting from the focus here, it is worth noting that the North Carolina Supreme Court's decision involved "strict scrutiny" under the North Carolina Constitution of the North Carolina Legislature's districting maps in this case. The majority of the North Carolina Supreme Court held that what the majority called the Free Elections, Equal Protection, Free Speech and Freedom of Assembly provisions in the North Carolina Constitution convey fundamental rights. Harper v. Hall, ___ S.E.2d ___, No. 413PA21, 2022-NCSC-17, 2022 WL 496215, at ¶ 179, p. *42 (N.C. Feb. 14, 2022). Together, these provisions of the North Carolina Constitution convey a further fundamental right: "The right to vote on equal terms is a fundamental right in this state[.]" Harper v. Hall, 2022 WL 496215, at ¶ 181, p. *43. The second part of the strict scrutiny test applied in North Carolina requires a compelling State justification for its action. There was no compelling justification here, the North Carolina Supreme Court ruled: "Partisan advantage, however, is not a compelling governmental interest." Harper v. Hall, 2022 WL 496215, at ¶ 181, p. *43.
[2] I looked up the word, "congeries," not because I did not necessarily know what it means but because applying an old tactic I wanted to learn what might be in Justice Alito's mind when he wrote it. Webster's defines "congeries" as an aggregation or collection. Among the synonyms given by Roget's Thesaurus are "mass," "lump," and "amassment." Interesting word to describe fundamental rights, "a congeries" of State Constitutional provisions that went unaddressed in Washington.
