Opinion: The Woodshed

North Carolina Democrats, liberal leaders once spoke out against court-packing

Why are they quiet now?

The courtroom at the U.S. Supreme Court (Photo from supremecourt.gov)
The courtroom at the U.S. Supreme Court (Photo from supremecourt.gov)

In Washington D.C., court-packing is a hot topic. U.S. Sen. Ed Markey, D-Mass., introduced a bill recently that would add four justices to the U.S. Supreme Court, taking the high court from nine members to 13. Markey rolled out the legislation at a press conference in front of the Supreme Court alongside U.S. House Reps. Jerrold Nadler, D-NY, Mondaire Jones, D-NY, and Hank Johnson, D-Ga. The bill was officially filed in Congress and House Democrats have near-unanimous enthusiasm.

However, court-packing momentum isn’t limited to Capitol Hill. President Joe Biden issued an executive order creating a commission to study the expansion of the U.S. Supreme Court and other judical reforms. Biden’s move comes despite his declining to fully endorse court expansion proposed by national Democrats and their liberal allies.

Here in N.C., Democrats should not have to “study” court-packing schemes: They clearly voiced opposition to expanding the state Supreme Court in 2016.

Throwback to 2016 on court-packing

Just more than four years ago, North Carolina Democrats and left-leaning allies aggressively spoke out against rumors that Republican members of the North Carolina General Assembly would exercise their right under the North Carolina Constitution to add two additional seats to the seven-member state Supreme Court. In late 2016, when Democrats captured a 4-3 majority in the election, they believed Republicans would use the December hurricane relief special session to add the two seats and allow Republican Gov. Pat McCrory to make the appointments before his term ended in January.

However, as noted by Western Carolina University Political Science professor Chris Cooper at the time:

“Our state Constitution says the court can have between seven and nine members,” said Cooper.  Article 4, Section 6, of the North Carolina Constitution says, “The General Assembly may increase the number of associate justices.”

Senior Political Analyst Mitch Kokai of the John Locke Foundation explained the Constitutional provisions in detail here.

While no proposal to add seats to the courts was ever presented, Democrat lawmakers, liberal allies, and editorial writers were swift in their condemnation of the rumors and of the supposed court-packing strategy.

“In adding seats, the legislature and McCrory would be within the bounds of the state constitution, which permits a nine-member court. But, as we said on this page recently, they would not be within the bounds of fairness,” wrote the Winston-Salem Journal. 

The News and Observer Editorial Page voiced their opposition too.

“This is the height of disrespect of state’s voters. To add justices just because they don’t like the outcome of the election is outrageous,” Senate Minority leader and former Democratic Speaker of the House Dan Blue told WRAL in 2016.

Then N.C. State Senator and current state Attorney General Josh Stein even spoke about possible efforts to expand the high court way back in 2013 and blasted past attempts to pack courts on the federal level.

“Franklin Roosevelt tried it, and it failed them because it was wrong, even though he was a Democrat, it was wrong,” he told WRAL. 

Even though Republicans never attempted to add the seats to the court, Senate Minority Leader Dan Blue and House Minority Leader Darren Jackson wrote in the Fayetteville Observer in March of 2017  that a series of proposed judicial reform bills, including one to reduce the number of judges on the state court of appeals, was really a long term strategy to pack the N.C. Supreme Court.

In their letter, Blue and Jackson called the judiciary reform bills an “assault on the independence of the judiciary, because Republican members of the General Assembly likely want to create a justification for ‘court-packing’… Adding justices to the Supreme Court who will be more compliant to Republicans’ agenda.”

House Minority Leader Jackson was later appointed to the State Court of Appeals by Gov. Roy Cooper in 2020.

In 2016, William Barber, the bombastic protest leader of the State NAACP at the time, threatened to sue the North Carolina General Assembly if they exercised the constitutional authority to add two seats to the North Carolina Supreme Court.

“If they take steps to engage in a run around of the voters, by engaging in a cynical and blatant court packing scheme to rig another arm of the North Carolina government, we are ready to fight with litigation,” said Barber. “…If they attempt this, we already have in motion to turn our lawyers loose under section 2 of the Voting Rights Act. Enough is enough.”

Meanwhile, Bob Hall, the longtime leader of the left-leaning Democracy NC told the Winston-Salem Journal: “It would be expressively outrageous and an abuse of power to permit the additions to the Supreme Court because it would allow the legislature to conduct an outright takeover of another branch of government.”

Also, just more than four years ago, The North Carolina Trial Lawyers (North Carolina Advocates for Justice) wrote: “We ask the leaders of the House and Senate to publicly declare that they will not use the special session to expand the Supreme Court.”

NC Policy Watch State Director Rob Schofield wrote, “Such a move would be better described as one of the lowest of all low and despicable acts that one can imagine elected officials in our state ever contemplating. It would be the kind of act rightfully associated with despots and tin pot dictatorships, with Putinism and banana republic coups d’état, and an outright assault on democratic government.”

Yet, taking a somewhat different position, Mr. Schofield wrote in 2019, “In case you missed it, New York Times columnist Jamelle Bouie made a compelling argument this week that, in light of the Trump administration’s aggressive right-wing court packing of recent years, Democrats should consider expanding the Supreme Court if they somehow sweep the presidency and Congress in next year’s election.”

So, there it is. A change in the approach for the sake of naked partisanship.

What say they now?

To date, Carolina Journal can find no statement from Jackson, Blue, Stein, Hall, or Barber condemning court-packing at the highest level of the judiciary, now that it comes from Democrats in Congress, nor does it appear that Mr. Schofield has condemned proposals to expand the high court.

Carolina Journal was similarly unable to find any public statements from the NC Advocates for Justice condemning the current Congressional Democrats’ proposed court packing scheme.

The change of heart, or lack of spine, four years after blasting N.C. Republicans based simply on rumors of expanding the state’s high court, seems to be a universal affliction across the left, as Democrats on Capitol Hill file an actual piece of legislation to add four seats to the U.S. Supreme Court.

Perhaps this is because they know the bill will go down in flames, and they don’t want to be on board; or perhaps it is because they don’t want an internet search to reveal the hypocrisy.