A Life-Changing Tar Heel Judicial Election

By GENE NICHOL

We rarely think of state supreme court elections as dramatic turning points in how a society governs itself. North Carolina will soon change that.

The North Carolina Supreme Court, at present, has four Democratic and three Republican justices. It is, of course,  embarrassing to describe a court that way. But in 2016 our General Assembly mandated that high court elections return to partisan status.

Republican Paul Newby is the most rigidly ideological chief justice in modern NC history. His new colleague, Phil Berger Jr., now works feverishly to burnish his right-wing credentials. And Tamara Barringer has no apparent interest in separating herself from her extreme judicial brothers. If a Republican candidate wins either of the two seats on the ballot in 2022, the NC Supreme Court will likely match our legislature and become the most partisan appellate tribunal in America.

Here’s what will, in fairly short order, result:

1. A Green Light For Extreme Political Gerrymandering

Our legislature has amassed the strongest record of political gerrymandering ever witnessed. The US Supreme Court, in an astonishing act of partisan abdication in the Rucho case, effectively embraced such cheating. Democrats in Washington are too hapless, and too gutless, to do anything to stop it. That means the only remaining potential guarantor of democracy in North Carolina is our state supreme court. If a Republican justice is elected in 2020, Tar Heel democracy will be joyously and briskly surrendered – regardless of how the gerrymandering issue is (initially) decided in the weeks ahead.

2. Governor Cooper May Be Dramatically Weakened

The NC General Assembly is, to wildly understate, no respecter of separation of powers. It has repeatedly moved to gut the authorities of the Democratic governor (and attorney general). Our high court has turned aside a few of the very worst excesses. That will no longer occur with a new Republican judicial majority. Sen. Majority Leader Phil Berger countenances no disobedience, not even from his boy. So the General Assembly’s power will again become essentially unfettered, especially if elevated Republican lawmaking majorities are retained.

3. Tar Heel Women’s Right to Choose Will Likely Be Eliminated

The US Supreme Court is about to overturn or debilitate Roe v. Wade. The NC General Assembly will, in turn, move to eliminate a woman’s half-a-century established right to choose. Hopefully, the governor might be able to thwart the most sweeping statutory bans. But chances are good that lawmakers will ultimately make it almost impossible to get a legal abortion here. A real state supreme court could protect the rights established in Roe under the state constitution. A Republican Court would obviously never do that.

4. Crucial Leandro Education Decision Will be Overruled

The NC judiciary has, for three decades, sought to assure a very modest right to educational opportunity for poor and at-risk kids in public schools. Lawmakers (often of both parties) have fought to deny equality at every turn. Sen. Berger and Speaker Moore have hypocritically howled at Judge Lee’s efforts to enforce the Leandro ruling. A new Republican court will simply overrule it.

5. Concerns Over Systemic Racial Injustice Will be Interred.

The NC Supreme Court, in recent years, has taken a (very) few modest steps to reduce systemic racism in the state criminal justice system. Such moves are not well received in the all-white Republic caucuses of the General Assembly. Not to worry. No more will be forthcoming. There shall be no racial reckoning in the Tar Heel State.

If another Republican justice is added in 2022, we will abandon our democracy and constitutionalize the 1950s. Literally.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, February 1, 2022

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