Contempt poured from Paul Newby’s 73-page dissent.

By declaring North Carolina’s legislative and congressional districts unconstitutional, the state Supreme Court had “violate[d] the will of the people, making us a government of judges,” the Republican chief justice chastised the court’s four Democrats.

Already, three-quarters of North Carolinians believe politics influence judges’ rulings, Newby continued. “Today’s decision … will solidify this belief.”

Released on February 14, Harper v. Hall was the court’s fourth party-line opinion of 2022. Barely a year after winning one of the closest statewide elections in North Carolina history, Newby’s frustration with his court’s 4-3 Democratic majority had reached a boil.

But the partisan strife would only get more pronounced. Over the next six months, nearly a third of the court’s 44 opinions split by party, according to The Assembly’s analysis of court decisions. (The analysis excludes rote-but-voluminous appeals of parental rights terminations.)

This article was originally published Oct. 6 by The Assembly and is republished here with permission.

In increasingly bitter dissents, Republican justices have accused their colleagues of “judicial activism,” saying they’ve “usurped the role of the legislature” and “disguised radical arguments as judicial reasoning to justify their political outcome.”

For six years, the Democratic-majority Supreme Court has been a thorn in Republicans’ side. But that could soon change.

2 Court Seats on the Ballot

Two of the court’s seven seats are on the ballot this November, both carrying eight-year terms. If Republicans win those, they’ll control the court through at least 2028, with looming decisions on abortion rights, gerrymandering, and other consequential issues.

Despite these stakes, most voters will know little about the candidates — their temperaments or reputations, whether they’re ideologues or moderates. Instead, they’ll choose based solely on which party the candidates belong to.

“There may be no better test of the partisan environment than the Supreme Court races,” Chris Cooper, a political scientist at Western Carolina University, told The Assembly.

That’s the irony of partisan judicial elections: They inextricably bind the fates of candidates who stress their political independence — who insist that their party affiliations won’t predict their decisions — to their parties’ success.

Critics of this system, including many legislative Democrats and some current and former judges from both parties, say it feeds the perception that judges are just politicians in robes, which undermines the public’s trust in the judiciary.

There’s little doubt that confidence is waning. Recent polls have found that only about half of voters say they trust the state’s courts. There’s also widespread agreement that this erosion threatens the judiciary’s legitimacy.

But not everyone agrees that partisan elections are to blame. And there’s no consensus on what a better system would look like.

Turning Point

After Newby became chief justice in 2021, critics charged that the sprawling court system he oversees became increasingly politicized. Personnel moves brought Republican operatives into key positions. Newby and the newly elected Justice Phil Berger Jr. — the son of powerful Senate leader Phil Berger — also conspicuously supported Republican judicial candidates, a break from the tradition of judges avoiding electoral politics when they aren’t on the ballot.

Chief Justice Paul Newby // photo by Brad Coville/The Wilson Times via AP, File

But the Newby Court’s first year wasn’t unusual.

The justices divided along party lines in five of 65 opinions in 2021, which is in line with historical norms, court watchers say. The last time Democrats held a 4-3 majority, in 2017 and 2018, only 2 percent of rulings produced party-line splits, according to Mitch Kokai, a political analyst at the conservative John Locke Foundation.

In September 2021, however, the four Democratic justices raised the possibility of disqualifying Justice Berger and Justice Tamara Barringer from an upcoming gerrymandering case. Berger’s father, as Senate leader, was a defendant, and Barringer had voted for the contested districts as a state representative, which the Democrats said raised questions of impartiality.

Republicans were apoplectic. Dallas Woodhouse, the former director of the state GOP and a well-sourced columnist for the conservative Carolina Journal, suggested that House Republicans would impeach the justices if they followed through, triggering automatic suspensions that could drag out until after the 2022 election.

Democrats backed down, leaving recusal decisions to individual justices. Berger and Barringer declined to step aside. Legislative Republicans then demanded that Earls recuse herself from a separate gerrymandering case. The nonprofit legal firm she founded represented one of the plaintiffs, and the National Democratic Redistricting Committee had contributed to her 2018 campaign. Earls also declined.

The back-and-forth marked a turning point.

In the first eight months of 2022, 33 percent of the court’s opinions resulted in party-line splits. Several of the most contentious decisions had far-reaching implications.

Democratic justices made juvenile murderers eligible for parole after a maximum of 40 years. They vacated a conviction because a prosecutor rejected a Black juror. They’ll soon decide whether judges can compel the General Assembly to spend $785 million on schools or the General Assembly can ignore a judicial order—a case with huge implications for the separation of powers.

They also fast-tracked arguments over a voter ID statute and partisan gerrymandering for future elections. Republicans furiously objected, arguing that Democrats had expedited those cases only to ensure that they — not the justices elected in November — ruled on them.

Associate Justice Phil Berger Jr. // photo courtesy of North Carolina Administrative Office of the Courts via AP, File

But while Republican justices have accused Democrats of partisan agendas, Republicans are much more likely to vote in lockstep, according to The Assembly’s analysis. Newby and Berger have always voted alike. Barringer has broken from her party colleagues just six times in the 101 opinions in which justices’ votes were recorded between February 2021 and August 2022.

By contrast, one or more Democratic justices broke ranks 26 times.

Power Plays

North Carolina began electing judges during Reconstruction, democratizing a process that before the Civil War was controlled by the General Assembly. Once Reconstruction ended, political power plays began.

A law passed in 1877 made the entire state vote for the 12 superior court judges, rather than having voters in each judge’s assigned district pick them. Created to maintain white Democratic rule, the system persisted for 115 years.

Between 1900 and 1992, when federal courts intervened, the state elected only one Republican superior court judge. (Today, 109 superior court judges in 48 districts oversee civil and felony trials, while the state’s 282 district court judges hear traffic infractions, misdemeanors, and small civil claims.)

A few weeks before the 2002 midterms — after the GOP swept Supreme Court races in 1998 and 2000 — the Democratic-led General Assembly made judicial elections nonpartisan. Beginning in 2004, candidates’ party affiliations no longer appeared on the ballot, and they didn’t run in party primaries.

From 2004 to 2014, Democratic-backed Supreme Court candidates won seven of 13 nonpartisan contests. But not all of the Democrats were liberals; Chief Justice Sarah Parker, for example, was considered a conservative.

After claiming the state’s government in 2013, Republicans tried to game the system, too.

They passed a law that made Supreme Court justices stand for retention—a yes-no vote on whether to keep them for another term—rather than run for re-election. Many observers saw the law as an attempt to bolster Justice Bob Edmunds, whose term was set to end in 2016, and preserve Republicans’ 4-3 majority on the (nonpartisan) court. Indeed, one national study showed that between 1990 and 2004, incumbents were retained about 99 percent of the time.

But a panel of Wake County Superior Court judges struck down the statute. With Edmunds recusing himself, the Supreme Court deadlocked on appeal, and the lower court’s decision stuck.

Associate Justice Anita Earls // photo by Julia Wall/The News & Observer via AP

Republicans also added the party affiliations of candidates for the Court of Appeals, the 15-member court below the Supreme Court, to the 2016 ballot. At the time, state law awarded the top ballot line for each race, which studies show provides a significant advantage, to members of the governor’s party—that year, Republicans.

All five Republican Court of Appeals candidates won. But the move cost Republicans control of the Supreme Court.

The Court of Appeals races appeared just below the Supreme Court contest. In that race, as with other nonpartisan races, the top line on the ballot was determined by the luck of the draw.

Fortune smiled on Democrat Michael Morgan, a Wake County Superior Court judge, who easily defeated Edmunds by running up margins in several deep-red counties, which suggested that some voters mistook him for a Republican.

In response, North Carolina became the first state in nearly a century to make nonpartisan Supreme Court races partisan. After Democratic Gov. Roy Cooper took office in 2017, Republicans also repealed the law granting the governor’s party the first ballot line.

The General Assembly then eliminated primaries for the Supreme Court election in 2018. They hoped that multiple Democrats would run against Barbara Jackson, the incumbent Republican, cannibalizing one another’s support in the November election. This gambit backfired, as well.

Democrats united around civil rights lawyer Anita Earls, and another Democrat changed parties and ran to siphon votes from Jackson. Earls won with just under 50 percent.

“Republicans thought they were gonna do that very same trick to ensure [Jackson] won,” said former state Rep. Paul Stam, who served in the Republican House leadership from 2007 until his retirement in 2016. “But they couldn’t get anybody to run as a Democrat.”

The 2020 election was the most expensive judicial contest in state history. Candidates and political action committees spent more than $10 million on the three Supreme Court races.

Despite the influx of cash, party affiliation drove the results. Like former President Donald Trump and U.S. Senator Thom Tillis, the three Republicans running for Supreme Court and five running for the Court of Appeals carried the state by narrow — and similar — margins.

None garnered more than 52 percent. Newby defeated Cheri Beasley, now the Democratic nominee for U.S. Senate, by 401 votes.

“With the judicial races, there’s almost no deviation from race to race,” said Tom Jensen, director of the Raleigh-based Public Policy Polling, a Democratic-leaning firm. “Either the Democrats win everything or the Republicans win everything.”

Republicans are one justice away from reclaiming the majority they lost in 2016.

The only public survey of the Supreme Court election, released on October 3 by Survey USA and WRAL, gives the two Republican candidates slight leads, though there are many undecided voters.

Law and Politics

In September, as it does each election, the North Carolina State Board of Elections mailed 4.75 million copies of its Judicial Voting Guide to voters. The 20-page booklet includes basic information about statewide judicial candidates and gives candidates space for their elevator pitch.

Because the North Carolina Code of Judicial Conduct prohibits judges from making “public comment about the merits of a pending proceeding in any state or federal court dealing with a case or controversy arising in North Carolina or addressing North Carolina law,” their statements are less than revealing.

Republican Richard Dietz, an appeals court judge now running for Supreme Court, said he will “always be fair and never wade into politics.” Court of Appeals Judge Lucy Inman, his Democratic opponent, promised to “keep our judicial system fair and free from partisan politics and ideology.”

Judges “should not have partisan or ideological agendas,” said Justice Sam J. Ervin, IV, a Democrat seeking his second term. Allen, his challenger, pledged to “never base decisions on my political views or personal preferences.”

During campaign events, the Republicans have said the court’s decisions to expedite controversial cases make the justices appear political. At a Federalist Society forum on September 9, Ervin said he couldn’t comment on pending cases, while Inman said justices should only expedite cases in urgent circumstances.

“I do think when you have some tremendously important, especially state constitutional issues or other issues that are on a short time frame — I think of election law because we’re going to have an election — and if there’s a dispute, and you need to get it resolved before the election, that would be a reason to do it more quickly,” Inman told the Federalist Society forum.

The candidates have also highlighted what they see as their distinct qualifications. Allen touts his service in the Marines, Ervin his record of independence on the court. Inman boasts endorsements from retired judges of both parties, while Dietz says the fact that he’s never authored a dissent shows that he can build consensus.

Sometimes candidates ask voters to read between the lines to figure out what kind of justice they’d be. Allen, for example, has likened his judicial philosophy to those of the U.S. Supreme Court Justices Clarence Thomas and the late Antonin Scalia, both stalwart conservatives.

Inman’s campaign told supporters in a September 20 fundraising email that everything “from free and fair elections to our ability to access medical care to protecting our environment to maintaining a majority of justices unafraid to stand up to the other branches of government” is “on the line in November.”

More often, though, they stick to ambiguous commitments to fairness and impartiality. It makes covering the races challenging.

“They use a lot of this language — ‘judicial restraint’ and all these terms — the public doesn’t even understand,” Tim Boyum, the host of Spectrum News’ political show Capital Tonight, told The Assembly. “And I’m not sure what [voters] get out of it unless they are really in tune with the judicial process in North Carolina and beyond.”

Besides party affiliations, voters have few ways to infer how candidates will decide cases. But party labels can be misleading, said former Justice Edmunds, who lost the last nonpartisan Supreme Court race in 2016.

“I am a Republican,” Edmunds said. “People who hear that assume automatically that they know how I feel about gun control, how I feel about abortion, how I feel about charter schools, how I feel about drug legalization.”

Ervin, who was elected in a nonpartisan race in 2014, said partisan elections have changed how the public sees the court. “I think by creating partisan elections, we’ve sent a signal to voters that maybe it’s OK to think of us like you think of legislators or executive branch officials,” he said. “I find that rather troubling, personally.”

Republican distrust of the state Supreme Court has already led to what former federal judge J. Michael Luttig, a respected conservative, called “the most important case for American democracy in the almost two and a half centuries since America’s founding.”

Legislative Republicans have asked the U.S. Supreme Court to embrace the independent state legislature theory—the once-radical idea that state courts have no authority to block legislatures’ redistricting plans—or even the appointment of rogue presidential electors.

“As the law has become more politicized, critics of judicial opinions, including courts and judges themselves, have accused courts of legislating, rather than interpreting, the laws, as proponents of the independent state legislature accuse the North Carolina Supreme Court of doing,” Luttig wrote in The Atlantic earlier this month.

But Luttig and other experts point out that the difference between legislating and interpreting the law is subjective.

“One of the aspects of this that people have to realize is that people are going to come to different conclusions about what the law and what the Constitution says,” said Kokai, the John Locke Foundation analyst, who has criticized some of the Democratic majority’s decisions.

“Sometimes it’s not clear. There are ways for people who have a different approach to the law to come up with different responses.”

Worst of Both Worlds

Winston Churchill famously quipped that “democracy is the worst form of government, except for all those other forms that have been tried from time to time.”

Defenders of partisan judicial elections make a similar argument: The system has flaws, but so do the alternatives.

A majority of states appoint justices instead of electing them, often relying on recommendations from independent nominating commissions. In states following the so-called Missouri Plan, these judges face retention elections when their terms expire; in other states, they are reappointed.

While research indicates that appointment judges produce higher-quality decisions than their elected counterparts, these systems aren’t immune to political pressures.

Commissions have been criticized for appointing liberal judges and stifling diversity on the bench. Judges facing reappointment or retention elections align their rulings to public sentiment, sometimes by issuing draconian sentences to avoid being labeled “soft on crime,” studies show.

A handful of states mimic the federal system, which uses lifetime appointments to insulate judges from politics. But the U.S. Supreme Court’s crumbling support, especially after it overturned Roe v. Wade, shows the limits of that approach.

For now, conversations about overhauling North Carolina’s system are theoretical. Switching to appointments would require a constitutional amendment, and voters aren’t interested. By an 80-12 margin, voters in a North Carolina Bar Association survey in June said they preferred elections.

Phil Strach, an attorney for Republican legislators, questions state Rep. Destin Hall, a top Republican redistricting official, during a partisan gerrymandering trial on Jan. 5, 2022 // photo by Travis Long/The News & Observer via AP, File

“It’s never gonna happen,” said Stam, the former House majority leader. He twice pushed for an appointment system, he said, but couldn’t muster enough support. “People don’t want to give up their right to vote even if they don’t know what they’re talking about.”

The real debate is whether North Carolina should remain with the seven states that hold partisan Supreme Court elections or join the 14 with nonpartisan races.

If the question was put to a vote, the nonpartisan side would probably win. More than 70 percent of state voters backed nonpartisan elections in the bar association’s poll, as did a 48-27 plurality in an August survey by the progressive policy organization Carolina Forward and a smaller 41-33 plurality in the Survey USA poll.

But the decision lies with the General Assembly. In the last two legislative sessions, House Republicans have declined to consider bills introduced by state Rep. Joe John, a Wake County Democrat, to reinstate nonpartisan judicial elections.

“I strongly feel that it is just wholly inconsistent to expect judges to be fair, objective, impartial, etc., on the one hand, and then, on the other, to require them to conduct themselves as partisan politicians,” John, a former appeals court judge, told The Assembly. “As the kids say, does not compute.”

But Kokai says North Carolina’s experience with nonpartisan Supreme Court races shows why it shouldn’t go back.

“I think nonpartisan elections could make sense if you ended up getting candidates who are not really aligned with the parties and neither party takes an interest in it,” Kokai said.

But that’s not what happened.

“It turned into the two parties clearing the fields so that there would be a Democratic candidate and a Republican candidate,” Kokai said. “And people would go into the polling booth and they [choose between] these two people without that key piece of information. And that seems to be the worst of both worlds.”

When voters don’t know what they’re voting for, they stop voting, Stam said.

In 2016, about 400,000 more people voted for the partisan Court of Appeals races than for the nonpartisan Supreme Court contest. Two years earlier, about 400,000 more people voted in the U.S. Senate race than in the nonpartisan Supreme Court elections.

But in 2020, with partisan Supreme Court elections, the dropoff between the Senate and chief justice races was only about 80,000.

John said it’s “ludicrous” to assume that voters need a party label when they have Google in their pocket. “If the public is not taking advantage of that opportunity, well, that’s another issue,” he said.

Stam also argues that partisan elections leave fewer opportunities for people to luck into office because they draw an advantageous ballot position or share a name with a celebrity. (In 2006, he recalls, long-shot Supreme Court candidate Rachel Lea Hunter unsuccessfully tried to list her name on the ballot as “Madame Justice.”)

Party primaries help filter out “really bad candidates,” Stam said. “[Parties] know they’ve got to have a candidate that will not make a fool of themselves.”

But partisan primaries also create “an incentive for parties to choose their most ideologically pure and political judicial candidates,” said Rick Glazier, a former Democratic state representative who now leads the North Carolina Justice Center.

The fewer centrists make it to the general election, the more polarized the court will become.

Predicament

The Supreme Court seated in January 2023 could grant GOP lawmakers license to draw legislative and congressional districts for their political benefit. It could reverse rulings that have halted the death penalty and reduced juvenile prison sentences. It could alter the state’s approach to environmental protection and economic regulation.

It could also decide that the state constitution does not protect the right to abortion, said University of North Carolina-Chapel Hill constitutional law professor Gene Nichol.

“People are not used to that kind of crucial import in state Supreme Court races, but I think that’s likely what we face,” Nichol, a fierce critic of North Carolina Republicans, told The Assembly.

The direction the court takes depends on which party has the majority. That’s what this election is about.

No candidate has said that, however. The shibboleth of impartiality forbids them from framing the election in those terms. Nor can they call the race a de facto referendum on abortion rights—though it might be, and saying so would both clarify the stakes and generate interest in an otherwise low-profile election.

That’s the predicament judicial candidates face: They both are and cannot be partisan politicians.

Their code of conduct prohibits taking positions on issues voters care about, which means they can’t draw contrasts with their opponents.

As a result, months of campaigning and fundraising are worth, at best, half a percentage point on Election Day, Public Policy Polling’s Jensen said. Beyond that, they’re at the mercy of partisan turnout.

Then again, nonpartisan candidates can win or lose based on random factors like ballot position or whether voters like the way their name sounds. And studies show that incumbents in nonpartisan judicial elections are less likely to be challenged, and more likely to win when they are.

Both options seem less than platonic ideals.

Removing party labels won’t stop voters from seeing the Supreme Court as a political institution, said Cooper, the Western Carolina University political scientist. Nor will it restore trust in the judiciary.

“Our experience with nonpartisan judicial elections did not end with both sides holding hands and singing ‘Kumbaya,’ ” Cooper told The Assembly.

But supporters of nonpartisan elections say they might stop a bad situation from getting worse — or, at least, not deteriorate as quickly.

“There’s not a perfect answer to this question,” Glazier said. “But what we do know is that we’re heading in the wrong direction. What we do know is that partisan races haven’t given us better judging.”


Jeffrey Billman reports on criminal justice and politics from Durham. He is the former editor-in-chief of INDY Week.

Raleigh-based The Assembly is a subscription-based digital magazine about the people, institutions, and ideas that shape North Carolina.

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