Crushing Judicial Independence in North Carolina

By GENE NICHOL

Over the past decade, no legislature in the United States has proven itself more needful of the effective constraint of independent judicial review than the North Carolina General Assembly. Reviewing judges determined our lawmakers enacted the most extensive and persistent “racial gerrymanders ever confronted by a federal court.” The harms had been “inflicted again and again, putting legislators into office under a cloud of illegitimacy” and “denying a constitutionally adequate voice in the state legislature.”

Independent tribunals also explained that no American legislature “had ever done so much, so fast, to restrict access” to the political system. The lawmakers’ consistent record of transgression, judges said, raised “legitimate questions regarding their capacity or willingness to draw constitutional electoral districts.” As a result, essential bonds of “consent by the governed” had been shredded —“interfering with the very mechanism by which people confer their sovereignty and hold the General Assembly accountable.”

Courts don’t usually talk like that. Our lawmakers aren’t timid cobblers and patchers when it comes to defying the demands of constitutional democracy. They’re pioneers. The new move to overturn the Wake County electoral system is just another page in this continuing chapter.

It must now be added that the obligations of independent judicial review exist whether judges are Democrats or Republicans. In Federalist No. 78 Alexander Hamilton wrote: “The complete independence of the courts is peculiarly essential to a limited Constitution, without this all reservations of particular rights amount to nothing. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”

It’s hard not to worry that our new state Supreme Court won’t prove up to that foundational task. Or even be interested in it.

Justice Phil Berger Jr., in a recent opinion, seemed to boast giddily while citing a news article which described “a lasting Republican grip on the Supreme Court.” But that was nothing compared to what came next.

In early February, the new high court issued what the New York Times called “an extraordinary pair of orders” to rehear two major voting rights cases it had decided only seven weeks earlier. The 5-2 Republican majority opinion could point to no changed circumstance to justify the exceedingly rare decision. The altered court membership was all that mattered.

Dissenting justice Anita Earls noted the “radical break with 205 years” of North Carolina history represented by the ruling. The “long practice” had been to respect the principle that once a decision was issued it “would not be disturbed merely because of a change in court composition.” Never before had this happened. Never. Earls wrote separately “to make clear the emperor has no clothes.” The majority had violated its “sworn oath to serve impartially without favoritism to anyone.”

It’s important to note what a departure this is from legitimate judicial decision-making. If the two reopened cases had not been triggered by Republican Party requests, no member of the North Carolina Supreme would even have considered supporting them. Since the motions to rehear were clothed in Republican Party marching orders, no member of the strictly partisan majority even considered opposing them.

The embarrassing opinion was written by new Republican justice – and former Chief justice Paul Newby clerk – Trey Allen. No surprise there. A lot of North Carolina lawyers, though, had held out hope for the more highly respected addition, Richard Dietz. But he eagerly signed on to the partisan charade. Oh well.

Welcome to what will quickly become the most partisan court in North Carolina, and perhaps American, history.

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, April 1, 2023

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