Chief Justice John Roberts asked a question that hinted that he was looking for an offramp that would allow the Supreme Court to rule in the GOP legislature's favor without blessing the full independent state legislature theory.
Roberts — who is seen as more of an institutionalist than the five justices to his right — has been known in recent years to look for narrow ways out of a case that avoid making major changes to case law. For instance, in the blockbuster abortion case last term, Roberts said that he would vote to uphold Mississippi's 15-week abortion ban but he disagreed with the majority's move to reverse the Roe precedent outright.
Roberts on Wednesday asked whether the problem in how the North Carolina state courts handled the legislature's map is that the courts were relying on a vague "free elections" standard in the state constitution, rather than a specific limit on partisan gerrymandering.
"If they had a more precise articulation of what the limits were that they were going to apply, whether it's going to be a particular percentage of gerrymandering, departure or something more substantive, is it the problem that they're just interpreting something that gives them free rein or is that not a consideration?" Roberts asked.
David Thompson, who is representing the North Carolina Republicans, said that is their "back up" problem with what the state courts did in their case, but he held onto the idea state constitutions could not impose a substantive limit on what election rules a legislature can enact.
Justice Sonia Sotomayor followed up later in the hearing with a point that seemed to push back at the idea that the state courts erred by using a vaguely worded "free elections" clause in the state constitution to strike down the congressional map.
She brought up the somewhat ambiguous language in the US Constitution and federal statute that federal courts interpret all the time. She asked Thompson how what the North Carolina courts did was any different than what federal courts typically do.