Opinion: CJ Opinion

Pillars of N.C. legal community raise red flags about removal of justices

One message came across as deferential and circumspect. It focused on tradition. The other message appeared more direct and forceful. It focused on the letter of the law.

But both messages from pillars of the N.C. legal community pointed in the same direction. They cautioned the state Supreme Court to think twice about abandoning its longstanding practices related to recusal.

Recusal happens when a judge or justice decides not to take part in a case. Up until now, that process in N.C. courts has been left to the individual jurist. But the Supreme Court will weigh arguments soon about forcing two justices to step away from a high-profile case involving voter ID.

The court has ordered attorneys on both sides of the current dispute to present arguments for and against the forced removal of justices. As the deadline approached for those arguments, experts with no direct stake in the case decided to offer additional perspective. Two particularly interesting developments occurred within three days of each other late last month.

On Oct. 22, retired UNC law professor John Orth filed a friend-of-the-court brief in the case. With more than four decades of experience on the Chapel Hill legal faculty, Orth is known as a constitutional law expert. His scholarly work includes one often-cited book focusing specifically on the N.C. Constitution.

Over the course of less than four pages, Orth’s latest brief makes a direct, forceful case against “involuntary recusal,” another name for booting justices off a case against their will.

The retired professor “believes that involuntary recusal would violate the Constitution of North Carolina.”

“Any constitutional violation would be dangerous,” Orth writes. “Involuntary recusal would be particularly dangerous. As an interpretation of the North Carolina Constitution by the Supreme Court of North Carolina, it is unclear how it could be reviewed and corrected. And it would set a precedent pregnant of many harms.”

Involuntary recusal violates two basic principles within the state constitution, Orth explains. Article IV, Section 6 sets the Supreme Court’s size at seven members. Section 16 prescribes that voters will elect the court’s members.

“Involuntary recusal would unconstitutionally reduce the number of Justices deciding a particular case and interrupt their terms of service in violation of Article IV, [Sections] 6 and 16,” Orth writes.

The state constitution also spells out the process of removing judges. It’s a job left to the General Assembly or a Judicial Standards Commission set up in connection with a 1972 state constitutional amendment.

The Supreme Court would violate the constitution by removing justices on its own, Orth explains. “Removal of a Justice by the Supreme Court would exceed the power conferred on the Court by the Constitution and violate the fundamental principle of separation of powers prescribed by the Constitution.”

Two days after the professor’s brief reached the state Supreme Court, three of that court’s former chief justices authored an opinion piece in the Raleigh News and Observer.

Less forceful than Orth, the column from former chiefs James Exum, Burley Mitchell, and Mark Martin carefully avoided making a recommendation. Offering “no opinion” about the proper course of action in the current legal dispute, the trio aimed instead to “offer our perspective on how the court has historically handled this issue and why,”

“In our collective experience on the court, the court deferred to the judgment of the individual justice or justices being asked to recuse,” wrote Exum and Mitchell, Democrats who oversaw the state’s highest court from 1986 to 1999, and Martin, a Republican who served as chief justice from 2014 to 2019.

“Without exception, recusal was not considered a matter for the whole court to resolve. The reason for this policy is simple: Only the individual justice can examine her or his conscience. Only the individual justice knows whether she or he can overcome any bias and render a fair and objective decision.”

In case their preference remained unclear, the three former chiefs offered an additional endorsement of the longstanding tradition of voluntary recusal.

“Our confidence in this approach remains strong, in part because our court was hardly alone in adopting it,” they wrote. “In fact, our nation’s highest court, the Supreme Court of the United States, employs a similar system of individual accountability for issues of recusal. When confronted with a recusal question, each justice balances the duty to execute the office against the parallel duty to step aside, and that justice renders an individual decision.”

The column ends with a message to the current court. “We trust our successors to resolve this difficult question in a way that promotes fundamental fairness, protects the integrity of our judiciary, and, above all else, preserves the rule of law. North Carolinians deserve nothing less.”

Direct or indirect. Forceful or cautious. Both Orth’s friend-of-the-court brief and the former chief justices’ column send a similar signal: The state Supreme Court would stray far from tradition and precedent by removing justices from a case against their will.

Such a decision could have long-lasting negative consequences for fundamental fairness, judicial integrity, and the rule of law.

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