North Carolina’s Supreme Transgression

By GENE NICHOL

Much has been made here in recent days of the new North Carolina Supreme Court’s rule-of-law-defying, “procedural” blitzkrieg. As well it should. The boldly partisan majority announced, with fervor, there is a new sheriff in town. And they’re on a mission. They aren’t judges in any traditional sense. They’re right-wing Republican foot soldiers. Ambitious ones, to be sure. But their mandate doesn’t come from legal norms. They’re out to own the libs. And they’re doing it.

To remind, at the request of Republican lawmakers, the “justices” threw aside two centuries of uniform practice and ordered rehearing in both the political gerrymandering and voter ID cases. The prior rulings were only weeks old. In a “display of raw partisanship,” for the first time in state history, the Court ordered reconsideration merely because the makeup of the tribunal had changed. They did it because they could. But they couldn’t do it lawfully.

Next, they blocked the already-resolved public education, Leandro decision’s enforcement. The dissenting judges called out the partisan “gamesmanship” as a violation of the “Rules of Appellate Procedure, precedent, law of the case, stare decisis and the rule of law.” To lawyers, it was a clean sweep. Lawlessness on stilts. And the Republican majority seemed gleeful about it.

The Chief Justice Paul Newby court has thrown the rule book out the door. Quickly. I’m not sure any procedural norm can now be said to confidently stand. Legal standards, traditions and processes are central components of the rule of law – assuring that litigants are subjected to the same rules under similar circumstances, providing a system of “laws not men.” Obviously dissembling about their application mocks the fairness and integrity of the judiciary.

But these fraudulent rulings aren’t mere process transgressions. There is purpose behind the procedural terrorism. So it’s also important to consider what they’ve chosen to discard the legal standards for. They’ve cheated, no doubt. What do they cheat to accomplish?

The voter ID case the Republicans despise (Holmes v. Moore) did not rule that voter identification laws are impermissible. It held, instead, that the General Assembly had intentionally chosen to implement the requirement by favoring IDs “that African-Americans voters disproportionately lack.” No serious constitutional tribunal would accept an ID requirement designed to handicap Black voters. But the new NC Supreme Court smashed procedural norms to resurrect one. Cheating in order to discriminate.

In Harper, the redistricting case, the Supreme Court had ruled “the people of this state have the power to choose who governs.” As a result, the General Assembly’s stunning claim to “unlimited power to draw electoral maps that keep themselves in office as long as they want, regardless of the will of the people” could not stand. But our new court is apparently quite warm to unbounded legislative prerogative. Self-entrenchment isn’t so bad. The justices cheated, therefore, to allow the legislature to cheat.

Finally, in the Leandro case (Hoke County Bd. v. State), the Supreme Court found that “for 25 years, the judiciary has deferred to the executive and legislative branches to implement a comprehensive solution to (an) ongoing constitutional violation.” The justices determined the “state may not indefinitely violate the constitutional rights of NC schoolchildren without consequence.” Our constitution ‘is the supreme law of the land, it is not optional.” This notion, too, is apparently too much for the new Republican majority. So they cheated — in order to help crush poor kids’ educational opportunity.

Our new supreme court hasn’t trashed the rules of appellate practice for any high purpose. They’ve done it to help the powerful vitiate the too-modest rights of the marginalized. Villainous work in high place

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 15, 2023

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