Opinion: Daily Journal

State Supreme Court can join or avoid political fight

The N.C. Supreme Court will have another chance to join the political tug of war pitting Gov. Roy Cooper against state legislative leaders. How the high court responds to that opportunity will offer more clues about its willingness to play partisan politics.

The Republican-led General Assembly prevailed over the Democrat Cooper in two court rulings last week. Cooper quickly announced plans to appeal. It’s likely that neither the governor nor the legislature will abandon the legal battlefield until the state Supreme Court has had its say.

This won’t be the first time the court’s seven justices end up settling one skirmish in an ongoing political feud.

Back in January, the court’s four Democrats voted against its three Republicans in a case involving the newly merged state board overseeing state elections and ethics issues. That ruling favoring the governor in Cooper v. Berger marked just the third time (in 59 total cases) that the justices had split along party lines.

And the ruling stood out for more than just its party-line division. Breaking with normal practice, the Supreme Court released its Cooper v. Berger opinion without advanced notice on a day that had not been scheduled for newly released court rulings.

Justices also released Cooper v. Berger by itself. In contrast, the court had released seven opinions on its previous regularly scheduled opinion date in December. It released 18 more on the next regularly scheduled date in March.

Whether inspired by the subject matter — a time-sensitive election administration dispute at the start of a new election year — or other reasons, the Supreme Court set Cooper v. Berger apart from its other cases.

Since that case, the high court has returned to a pattern fairly consistent with justices’ work in 2017. That was the first year that the current seven-member court started hearing cases together. Regardless of Democrats’ newly won 4-3 majority, most 2017 cases ended with unanimous rulings. Of the minority of cases in which justices split, most splits had nothing to do with party labels.

Since Cooper v. Berger, the state Supreme Court has handed down another 29 opinions this year. Twenty-three, nearly 80 percent, have been unanimous. Just two of the cases have produced 4-3 splits. Neither of those splits involved party-line votes. Instead, Democratic Justice Sam Ervin IV (author of the Cooper v. Berger majority opinion) joined with the court’s three Republicans to form a majority in both cases.

In fact, since Cooper v. Berger, Ervin and the three Republican justices have joined the majority in every single case. (In one March case, technically a unanimous 7-0 decision on the outcome, Ervin and his three fellow Democrats endorsed a majority opinion, while the three Republicans agreed — or concurred — only with the result.)

Meanwhile, Democrats have been the lone dissenters in recent months. Justice Cheri Beasley has written four dissents this year. That’s three more than she wrote throughout 2017. Justice Michael Morgan has authored two dissents and Justice Robin Hudson one.

It’s true that no other case this year has featured the partisan political angle associated with Cooper v. Berger. Most have had little or no relation to any current political or public policy dispute.

But that fact makes the Cooper v. Berger ruling stand out in even starker contrast. When a court rarely splits along party lines (four times in 88 cases since January 2017), a party-line vote in a case involving partisan politics is bound to raise eyebrows.

The current court has not backed the governor in every dispute. In March, the Supreme Court refused Cooper’s latest plea to block the elections and ethics board from moving forward. A one-sentence order signed by Morgan shot down Cooper’s request.

Now court observers will watch closely as the justices decide how to handle the latest partisan disputes. They involve three questions.

First, can the General Assembly order the governor to include funding for Opportunity Scholarship school vouchers in his budget proposal? Second, can the General Assembly shrink the N.C. Court of Appeals from 15 members to 12 by depriving the governor of appointments to appellate court seats that are vacated in the middle of a term? Third, must the governor cede control of all money in the state treasury to lawmakers?

A lower court has answered “yes” to all three questions. In the case of voucher funding and the Appeals Court downsizing, that “yes” emerged from a partisan split on a three-judge Superior Court panel. Two Republicans cast the affirmative votes, while a Democrat dissented. In the case of control over state funds, though, the same Democrat was the sole presiding judge. He ruled in favor of the Republican-led General Assembly and against the Democratic governor.

No one should be surprised if the Supreme Court takes up the first two issues, given the split trial-court ruling. Even with no partisan element, it’s common for an appellate court to settle issues that prompt such division within lower courts.

It would be more remarkable if justices decide to address the third, clear-cut decision favoring the General Assembly. That case contained no hint of partisan bias on the bench. A reversal from the Supreme Court would inject at least the appearance of partisanship.

Justices probably would like to avoid another 4-3 party-line split. As one former appellate colleague has said, “They realize that the perception is not a good one to come out that way.”

Much of our faith in the judicial system is based on the perception that courts place the law before party politics.

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