Opinion: Daily Journal

Chief justice says rule of law requires setting aside preferences, opinions

N.C. Supreme Court Chief Justice Mark Martin, right, delivers remarks during the Jan. 7, 2019, celebration of the court's 200th anniversary. Senior Associate Justice Paul Newby listens.
N.C. Supreme Court Chief Justice Mark Martin, right, delivers remarks during the Jan. 7, 2019, celebration of the court's 200th anniversary. Senior Associate Justice Paul Newby listens.

If party labels tell the story, Chief Justice Mark Martin could end up on the losing end of a lot of N.C. Supreme Court decisions this year.

Martin’s remarks during the recent celebration of the court’s 200th anniversary suggest he’s looking forward to a different outcome.

“Alexander Hamilton posited that the judiciary is the least dangerous of the three branches of government,” said Martin, citing the famous American founder’s words in the 78th Federalist Papers essay. “As such, he theorized that the general liberty of the people can never be endangered from that quarter.”

But Hamilton, “like any good lawyer,” added a caveat, “that the judiciary remain truly distinct from both the legislature and the executive,” Martin added. “With this warning in mind, he went on to urge that the courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

In other words, judges should refrain from acting like legislators.

That doesn’t mean judges always will reach the same conclusions. “Each of us, as unique individuals, and thus as unique jurists, may not always administer the principles of Federalist 78 in the same exact way as other judges,” Martin explained. “The key is that we each strive to do so — that we understand that the judicial office is not a political office. Courts are a co-equal branch but with a different function than the legislative and executive branches.”

“We understand that judges should defer to the other branches on issues of policy as long as constitutional standards are observed,” Martin said. “By assuming a seat on this bench, we lay down our preferences and opinions in joint pursuit of upholding the rule of law.”

“If judges do strive in good faith to observe the principles of Federalist 78, then the courts will in fact be the least dangerous branch,” the chief justice added.

Martin aimed his words at a room full of federal and state judges, along with other lawyers and political leaders, including Democratic Gov. Roy Cooper and Republican Lt. Gov. Dan Forest, potential combatants in the 2020 race for the state Executive Mansion.

But one suspects that the chief justice hoped colleagues sitting to his left and right would take special notice. Martin is now one of just two registered Republicans on the seven-member Supreme Court. His newest colleague, Democrat Anita Earls, donned the black robe this month after decades of displaying her “preferences and opinions” as a lawyer pursuing causes for left-of-center advocacy groups like the Southern Coalition for Social Justice.

Democratic partisans have hoped and their Republican counterparts have feared that a new 5-2 Democratic majority on the high court will lead to a substantial shift in court rulings. They predict a shift toward the political left. That outcome is possible. It’s not guaranteed.

With a 4-3 advantage during the past two years, Democratic justices rarely displayed any evidence of a desire to secure partisan outcomes. Democrats and Republicans split along party lines in just three of 155 rulings handed down in 2017 and 2018. (In a fourth instance, the seven justices agreed on the result of a case while splitting along party lines on the legal reasoning.) Only one of those cases, the Cooper v. Berger ruling on a disputed reworking of the state elections board, involved a political dispute.

In other political cases, the court has acted in ways that worked to partisan Democrats’ disadvantage. In March 2018, a unanimous one-sentence order signed by Democratic Justice Michael Morgan denied a request from Cooper. The Democratic governor wanted the high court to block the Republican-led General Assembly from merging state elections and ethics boards. The Supreme Court refused to go along. (A later trial-court order prompted state lawmakers to reverse the merger anyway.)

In September, the court rebuffed Cooper’s attempt to block two proposed constitutional amendments from appearing on the fall election ballot. Without comment and with no sign of dissent, justices followed the standard appellate process and ultimately endorsed the conclusions of a Superior Court panel.

In December, a unanimous court sided with Republican lawmakers in their fight with Cooper over confirmation of the governor’s Cabinet appointments. Martin wrote for the court — including all four Democrats — in reaffirming the GOP-led General Assembly’s “general power to legislate, which it retains as an arm of the people.”

No one can say with certainty how Earls will influence the court’s direction. Martin, for one, signaled during his Jan. 7 remarks that he hopes justices will continue to “lay down our preferences and opinions.”

“It is often quoted that freedom is a fragile thing and is never more than one generation away from extinction,” the chief justice said. “It is not ours by inheritance and must be fought for and defended constantly by each generation. Our freedoms as Americans are secured by the rule of law, by respect for our Constitution, and by each of us doing our part to promote and support the public good.”

“The members of this court are the ultimate guardians of the rule of law in this state,” Martin added. “It is the responsibility of the members of this court — both now and in the future — to heed Hamilton’s charge, to decide each case as the law requires.”

Follow that guidance, and avoid playing partisan political games, and the Supreme Court will give North Carolinians more reasons to celebrate its accomplishments in another 100 years.

Mitch Kokai is senior political analyst for the John Locke Foundation.