On Thursday, March 18, the North Carolina Supreme Court will hear oral arguments in the latest round of litigation over legislative redistricting in the state. At issue in this hearing is simply, and importantly, in which state court plaintiffs will be allowed to take their legal and constitutional challenges to the NC House and Senate maps drawn by lawmakers last November. Previous litigation occurred in the Johnston County courtroom of the much-maligned Superior Court Judge Knox Jenkins. As part of their redistricting bill late last year, the General Assembly included a provision to move all such cases to a new three-judge panel in Wake County.

This may look like a blurry bunch of political maneuvering. It may sound like inside-baseball detail for the few political insiders who care a great deal about redistricting policy. But the stakes in this case have now grown far beyond competitive elections for the General Assembly. What North Carolina’s highest court is really being asked to decide is whether the judiciary is a separate and equal branch of state government or subservient to the state legislature.

Let me illustrate the main issues in play with the following hypothetical case.

Since the early 1990s, litigation has been proceeding through the state courts of North Carolina on the issue of equity in public-school finance. The Leandro case, as it has come to be called, has been closely watched by elected and appointed officials at all levels of government. The case finally reached the NC Supreme Court some years ago, where then-Chief Justice Burley Mitchell and a majority ruled that the state’s constitution guaranteed all children the right to a “sound, basic education.” The case was then sent back to a local judge, Wake Superior Court Judge Howard Manning, Jr., who has subsequently made several critical and controversial rulings. He did not find that the state’s system for funding local schools was fundamentally at odds with the constitutional principles explicated by the Supreme Court, but he did require both state officials and local school districts to take several specific actions, including the provision of preschool programs for at-risk students.

It is not hypothetical to assert that many members of the General Assembly, Democrat and Republican, were not happy with aspects of the Leandro decisions. They thought that Manning, and even the Supreme Court, had gone too far in applying the state constitution’s language on public education. Surely, they said, the decision about whether North Carolina should create a preschool program – something not specifically called for in the state constitution, of course – was properly a legislative matter, not a judicial one.

But what if lawmakers had gone beyond the point of grumbling, and beyond the point of urging other attorneys to run for the Supreme Court who they thought might read the constitution more strictly? What if they had convened in a special session and adopted legislation that created a new judicial panel to hear all education-finance litigation, including the Leandro case? That is, what if they had passed a law to take an ongoing case away from the judge with whom they disagreed, Manning, on the grounds that they as elected legislators had the constitutional power to create courts?

I think it is safe to say that the proverbial excrement would have been propelled forcefully and rapidly into the proverbial fan. Education officials and newspaper editorialists would have been outraged. The state’s judiciary and attorneys would have been up in arms. Lawmakers would have been called heavy-handed and petulant. More serious critics would have called their actions an abuse of power, a dangerous precedent, and a potential threat to the constitutional separation of powers itself.

I pick the example of the Leandro case for a reason. There are legitimate grounds for criticizing it. I’ve done it myself. I respect Judge Manning a great deal, for example, but I think he was reaching to say that the constitution mandated the creation of pre-kindergarten programs as a remedy for inadequate K-12 education. But certainly if I or anyone else critical of the decision had suggested that lawmakers could strip this ongoing litigation from Manning because of a disagreement with his rulings, the uproar would have been deafening.

So why has the General Assembly’s real-life usurpation of judicial prerogatives in the Stephenson v. Bartlett redistricting case elicited little more than yawns? There may be some legitimate grounds for questioning Jenkins’ or the Supreme Court’s rulings on redistricting. Actually, once again, I’ve done so myself. But his jurisdiction in the Stephenson litigation was established years ago, and without any appeal by the attorneys representing legislative leaders. It is a settled matter. It is also a settled matter that the Stephenson cases is still pending. Jenkins concluded as such in an order dated September 25, 2003, an order that has not been overturned by any higher court. In 2002, the Supreme Court ordered Jenkins to retain jurisdiction until permanent redistricting plans satisfying the constitution were adopted. The case continues because the only reason the General Assembly redrew the legislative districts in November was that it was still under a court order to do so – a court order that Jenkins issued and that Jenkins must rule as having been satisfied or not.

As the AG’s office suggests in its latest brief in the case, you might even make some reasonable arguments to the effect that redistricting cases are of such a kind – complex and fundamentally tied to the actions of state officials in Wake County – that all future redistricting cases should be heard by a special three-judge panel in Wake County. I happen to think there could still be some constitutional problems with that, given that Article IV, Section 1 of the state constitution states that the General Assembly cannot “establish or authorize any courts other than as permitted by this Article,” and nothing in the article authorizes the creation of special three-judge Superior Courts in a single county for a single category of cases.

Still, grant the argument for a moment. What could possibly justify the legislature transferring an ongoing case to a new court? There is case law speaking to this issue. It forbids such an action – for obvious reasons, since it would allow legislators to second-guess court decisions whenever they adversely affected the state or just private individuals with political connections.

There is also the plain text of the constitution, which states, “The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a coordinate department of the government.” And there’s the underlying principle involved, that surely state government cannot be allowed to evade legal responsibility to its citizens by simply changing judicial venue until it gets the judge it wants that will exonerate its actions.

The North Carolina Supreme Court is not being asked to rule about redistricting or competitive elections any more. The Court is being challenged to defend itself against a full-fledged assault by state legislators who failed multiple times in court to enact unconstitutional but self-serving redistricting plans. These politicians are angry. They wish to maintain their power and protect themselves from electoral challenge. But in the future, the issues could be entirely different. If legislators are allowed to get away with this, constitutional government and the rule of law will be in danger.

Hood is president of the John Locke Foundation and publisher of Carolina Journal.