The Banner Day in North Carolina

By GENE NICHOL

April 28 was quite the day in North Carolina judicial history. Our state Supreme Court issued three sweeping rulings dramatically limiting the voting and representational rights of Tar Heels. That alone, no doubt, is an outrage. As the US Supreme Court wrote almost 140 years ago, in words that must now annoy Republicans: “the right to vote is a fundamental political right, preservative of all other rights.”

But the justices seemed bent on driving home an even bolder point. They were interested in making a splash. They produced a cascade of direction-altering rulings. Triplets. Kicking off, they claimed, a new era. Not only was partisan gerrymandering warmly embraced, a racially skewed voter ID law enthusiastically resurrected, and 55,000 Tar Heels having served their custodial prison sentences disenfranchised, the new 5-2 Republican majority openly and officially joined the General Assembly’s long-standing crusade against democracy. They flashed a potent political message as they claimed to eschew politics.

The whole process began, of course, with a radical departure from norms of appellate practice. The gerrymandering and voter ID cases were based on re-hearing motions. Never before, in the Court’s 200 plus year history, had it granted re-hearing based on a change in the tribunal’s membership. Much less based on change in the partisan makeup of the Court. But our new panel of activists had heady work to do. So traditional legal notions like stare decisis and the law of the case had to yield. And yield they did.

But for North Carolinians who struggle to preserve their threatened democracy, there were words in these three opinions that could rile even beyond the procedural abuse and the suppression of crucial electoral interests. Chief Justice Paul Newby and his Republican colleagues claimed the decisions represented an essential course correction, a kind of house cleaning, a return to principle and assurance of an appropriate separation of powers. Despite having trashed long-binding procedural norms, made a mockery of appellant precedent, and denying foundational rights of equal political participation, the Republican majority claimed high ground. Justice Phillip Berger was explicit:

“This Court has traditionally stood against the waves of partisan rulings in favor of the fundamental principle of equality under law. We commit to that fundamental principle and begin the process of returning the judiciary to its rightful place as ‘the least dangerous branch’… Our state courts follow the law, not the political winds of the day.” Really.

Michael Whatley, Chairman of the North Carolina Republican Party, echoed Berger’s fatuous boast: “This is a great day for the rule of law, a big step toward restoring respect for the Constitution and taking politics out of the courtroom.” I listened for thunderbolts.

To celebrate the April 28 decisions as a tribute to the rule of law is rich. It’s hard to see how one could show greater disdain for the rule of law than by undoing recent final judgments just because Republicans won the November election. The driving force was raw partisanship, not law. To profess fealty, as Berger did, to “the fundamental principle of equality under law” as the justices rejected fair electoral participation and, in two separate cases, welcomed race discrimination as untroubling, mocked the central premise of American constitutionalism. And to declare, in unhidden English, that the driving goal of the new North Carolina Supreme Court is “to take politics out of the courtroom” is, well, I can’t even say. As a Tar Heel, I know that many will support these rulings and many will oppose them. That is our divided lot. But no one in North Carolina will believe they aren’t political. No one. Not even Justice Berger.

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, June 15, 2023

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