Opinion: Daily Journal

History argues against frequent 4-3 state Supreme Court splits

Image from N.C. Judicial Branch website
Image from N.C. Judicial Branch website

You might expect that the 2020 N.C. Supreme Court elections will guarantee plenty of 4-3 rulings in the year ahead. The high court’s four Democrats could line up against its three Republicans, including the two newest members.

But a look back at recent court history suggests that it’s wise to look beyond party labels. Party-line splits proved rare the last time Democrats held a 4-3 advantage.

Before delving into the past, let’s set the stage for the newly reconfigured court that begins hearing cases this month.

Entering the 2020 election, Democrats outnumbered Republicans, 6-1, on the state Supreme Court. Three seats were up for grabs in November, including the chief justice’s post. For the first time in almost two decades, Democratic and Republican candidates competed in one-on-one matchups with party labels linked to their names.

Republicans swept all three seats, though Justice Paul Newby needed a month after Election Day to confirm his victory over outgoing Chief Justice Cheri Beasley. With new Republican Justices Tamara Barringer and Phil Berger Jr. joining the court, Democrats’ majority drops to 4-3.

The new partisan split mirrors the arrangement justices faced as recently as 2018. Democratic Justice Michael Morgan had joined the court in 2017 after unseating Republican incumbent Robert Edmunds in the 2016 election. Morgan’s win flipped control of the court from Republicans to Democrats.

Some observers expected that the change in partisan advantage in 2017 might lead to significant shifts in court rulings. Democrats would outvote their Republican colleagues regularly, 4-3. But that prediction never panned out.

Over the course of two years of a 4-3 Democratic majority, the state Supreme Court issued opinions in 155 cases. In 125 cases (81%), justices ruled unanimously. Of the remaining 30 cases, eight produced a solo dissent. In nine cases, two justices broke ranks.

That leaves 13 cases that produced 4-3 splits. That’s just 8% of total cases. Even more significant for those looking for signs of partisanship: Only three of those 13 splits pitted the court’s four Democrats against its three Republicans.

One of those partisan splits deserves special attention. On Jan. 26, 2018, the high court handed down its ruling in Cooper v. Berger. That case featured a political clash between the state’s Democratic governor and its Republican legislative leaders. The specific issue focused on lawmakers’ planned restructuring of the state elections board.

Democrats on the bench sided with the Democratic governor. They threw out a new bipartisan elections board. The board had promised equal membership for both major parties, rather than giving the governor a a 3-2 Democratic advantage. Critics viewed the ruling as a clear sign of partisan judicial activism.

But that case proved to be a rare exception.

In seven of the 4-3 splits registered in 2017 and 2018, the three Republican justices joined a Democrat to create a majority. Justice Sam Ervin IV gave Republican colleagues a fourth vote five times. Morgan, the court’s newest member at the time, joined the Republican justices twice.

It’s also worth noting that Newby wrote four of the majority opinions in 4-3 split rulings in 2017 and 2018. His reasoning convinced Ervin to cross party lines twice and Morgan on two other occasions.

Conditions changed after 2018. Democrats flipped an additional seat in that year’s election, then picked up a sixth seat in 2019 when a Republican resignation opened up a spot for a Cooper appointee.

As the Supreme Court’s only remaining Republican, Newby proved to be his colleagues’ most frequent critic. He dissented 54 times over the next two years. (No one else cast more than 25 dissenting votes.) But Newby did not always speak as a lone wolf. Ervin voted alongside Newby in dissent 11 times. Morgan and Newby dissented in 13 of the same cases.

Some of those cases proved politically consequential. Morgan and Newby bucked the majority in a pair of high-profile cases involving questionable leniency for sexual predators. Ervin and Newby differed on the legal reasoning — but reached the same result — in objecting to a court decision that freed a convicted murderer from death row.

Both Ervin and Morgan remain on the Supreme Court today. Recent history suggests that either one could prove willing to join Republicans in a split decision, even if that means voting against fellow Democrats. Strong legal reasoning could prove persuasive in winning Ervin’s or Morgan’s support.

Now, with two more conservative jurists on the bench and two Democratic colleagues who have been open to supporting his legal arguments in the past, Newby should be able to shift gears. He will no longer need to play dissenter-in-chief.

It’s even possible that he’ll be part of more winning coalitions than the court’s 4-3 Democratic majority suggests.

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