Opinion: Daily Journal

Partisan election battle masks N.C. Supreme Court’s collegial character

N.C. Supreme Court justices meet in an Aug. 17, 2018, conference. Photo posted at N.C. Judicial Branch Twitter page.
N.C. Supreme Court justices meet in an Aug. 17, 2018, conference. Photo posted at N.C. Judicial Branch Twitter page.

In the heat of partisan battle, much discussion about North Carolina’s Supreme Court election focuses on the current split between the court’s Republicans and Democrats.

Democrats hold four of the high court’s seven seats today. They have a chance to extend their advantage to 5-2.

That’s significant. But a closer look at the state Supreme Court’s recent record suggests that campaign rhetoric tends to overstate the impact of partisan affiliation.

Republican incumbent Justice Barbara Jackson holds the only seat up for election this year. Democrat Anita Earls is trying to unseat Jackson. (A second Republican in the race, Chris Anglin, complicates matters. But Anglin has spent little campaign time promoting his own candidacy. Instead he has focused on complaining about partisan judicial elections and the GOP-led General Assembly.)

A Jackson win would maintain the court’s status quo. So it’s useful to look beyond campaign ads and news reports. Let’s investigate the justices’ actual track record with Jackson on board.

The N.C. Supreme Court has issued 137 opinions in the nearly two years since Democrats gained their 4-3 majority. As a Republican justice on a court dominated by Democrats, Jackson must have spent most of her time in the minority, right?

Not exactly. Jackson has voted with the court’s majority 133 times, a whopping 97 percent. Only Justice Sam Ervin IV, a Democrat, rivals Jackson’s record over the past two years. Sitting out a single case, Ervin has voted with the majority in 131 of 136 cases, or 96 percent.

To be fair, all seven justices vote with the majority most of the time. Even the most frequent dissenter, Democratic Justice Cheri Beasley, has voted with the majority in 123 cases (90 percent).

While the differences remain small, Jackson still stands out slightly from the court’s other two Republicans. Justice Paul Newby has voted with the majority in 130 cases (95 percent), and Chief Justice Mark Martin has cast his vote with the prevailing side 129 times in 136 cases (also 95 percent).

Given the numbers cited above, it might not surprise you to learn that Jackson also has been the justice least likely to take up her pen in opposition to her colleagues. While she has cast four dissenting votes over the past two years, she has authored only a single dissenting opinion. That was in 2017. Jackson is the only one of the seven current justices who hasn’t written a single dissent this year.

In contrast, Beasley has written seven dissents this year alone and eight over the two-year period. Martin has written five dissenting opinions, the most among the Republican justices.

The lack of dissenting opinions from Jackson does not indicate an unwillingness to write. With seven majority opinions this year, she trails only Ervin’s 10. Over the two-year period, Jackson ties Beasley and Martin in total majority opinions (11), trailing Ervin (20), Newby (13), and Justice Robin Hudson (12). The court’s most recent addition — Democratic Justice Michael Morgan — has written the fewest majority opinions (seven).

The numbers also show that the court’s Democratic justices tend to agree more often with Jackson than with either of the other two Republicans. In both 2017 and 2018, Jackson was the Republican justice most likely to agree with Beasley, Hudson, and Morgan.

Though Ervin agreed more often with Martin than with Jackson in 2017 (the difference was a single case out of 57), Ervin has agreed more often with Jackson this year than either Martin or Newby. In fact, the Democrat Ervin has agreed more often with Jackson this year (76 of 79 cases) than he has with any of his fellow Democrats.

The bottom line: Nothing in the record from the past two years suggests that Justice Barbara Jackson pushes a partisan agenda from the bench. To the extent that the court has an ideological center, the numbers suggest she occupies it.

It’s important to note that just one case during the last two years has focused on a political battle with partisan implications. In January’s 4-3 Cooper v. Berger ruling, the court’s Democrats joined together against their Republican colleagues, including Jackson. Democratic justices ruled in favor of Democratic Gov. Roy Cooper in a dispute involving the state board overseeing elections and ethics enforcement.

Partisan Democrats hope — and their Republican counterparts fear — that Earls would provide a reliable fifth vote in future political disputes. If so, Cooper could enjoy a greater advantage in his ongoing court fights against Republican legislators.

That’s entirely possible. And the prospect of that partisan shift has helped drive much of the energy in this fall’s Supreme Court election campaign.

But as far as typical business is concerned, the numbers point to a different conclusion: A state Supreme Court without Barbara Jackson will have lost its most striking example of bipartisan collegiality.

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