Mocking Justice

By GENE NICHOL

Some things no longer surprise. nnLate September, the new Republican North Carolina Supreme Court granted a procedurally unusual request to review aspects of our long-standing school funding litigation. [Hoke County Board of Education v. State Board of Education.] Sen. Leader Phillip Berger and House Speaker Tim Moore had asked the court to re-examine issues of subject-matter jurisdiction in the decades-long dispute. The Republican justices readily agreed.

I say the result was not surprising. Our new tribunal has repeatedly shown a willingness to set aside old-fashioned concepts like the rules of appellate practice, tare decisis, finality, constitutional precedent, and the law of the case to push forward its bold and partisan mission. Its unleashed activism now moves full speed.

And if we’re looking for patterns in decision-making, here is the most true and unyielding marker. If Phil Berger and Tim Moore ask the new Republican court to do something, it shall be done. Straightaway. Expedited.

So everyone knew this was coming. There may be some mystery about how the justices will eventually explain themselves, but here is what’s certain. The educational interests of poor and at-risk kids in North Carolina public schools will be cast aside and the uncontestable majesty of the N.C. General Assembly will be secured. Count on it.

This vast and utter rejection of the foundational notion of independent judicial review is now upon us. Full-throated and boastful. We may detest it. But it is here. Chief Justice Newby and his friends tell us it’s a “course correction.” Get used to it. Constitutional accountability be damned.

But there’s one thing the old lawyer in me still manages to be stunned by.

When I read the Court’s new order in Hoke, it began, as all appellate cases do, with a title — listing the parties, the court, and, later, the judge or judges announcing the ruling. Here it was “Hoke County Bd. of Education (plaintiff) v. State Board of Education (defendant)” and “Phillip Berger and Timothy Moore, intervenor-defendants.” Well and good.

Then, a couple pages down, after a brief description of the order, it announces a fuller opinion entitled “Justice Berger concurring.” The same thing happened a few months ago in the Court’s landmark Voter ID decision. It read “Jabari Holmes, et al. v. Timothy Moore and Phillip Berger,” then the decision was announced by “Justice Berger.”

I know Justice Berger (Senator Berger’s son) has a cascade of arguments that he doesn’t have to recuse himself in cases involving his daddy. And apparently his Republican colleagues will assure that nothing can be done to stop it. But still, I’ve been reading appellate decisions for almost 50 years, and I can’t remember ever seeing that particular configuration: Party One v. Party Two, judicial opinion by Party Two’s son. Maybe it’s around somewhere, in some odd system of justice, but I’ve never seen it.

In Justice Berger’s Hoke opinion, he starts out by blasting Justice Anita Earls and her “ad nauseam fanciful protestations.” It’s a good thing the N.C. Judicial Standards Commission doesn’t investigate Republican justices for disparaging their Democratic colleagues.

Later on, he explains the Court is “duty-bound” to address “the jurisdictional theories (presented) in the briefs of the “Legislative-Intervenors.” And who are the “Legislative-Intervenors”? His daddy and Speaker Moore. No wonder he wanted to use the legal jargon. It’s got to be a tad uncomfortable saying, “we have to take my daddy’s arguments seriously.”

I suppose this is what we face in North Carolina. But I wish they wouldn’t rub our noses in it.

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, December 1, 2023

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