Opinion: Daily Journal

State Supreme Court numbers highlight differences between chief justice candidates

N.C. Supreme Court justices, Spring 2019 (Photo courtesy of N.C. courts)
N.C. Supreme Court justices, Spring 2019 (Photo courtesy of N.C. courts)

Voters will decide next week who should preside over North Carolina’s highest court for as long as eight years. Since that same person will oversee operations of the entire state court system, it’s an important choice.

Both candidates for state Supreme Court chief justice already serve on the state’s highest court. Voters can look at their records for clues about how they might approach future court cases.

Current Chief Justice Cheri Beasley, a Democrat, has served in the post since February 2019 as an appointee of Democratic Gov. Roy Cooper. That appointment bypassed the associate justice with the most seniority. Now the bypassed justice, Republican Paul Newby, is running against Beasley.

The state Supreme Court has handed down opinions in 115 cases this year. One case produced a 3-3 split with no public record of how justices voted. Among the rest of the cases, 78 (68%) have produced unanimous rulings. In 23 cases (20%), a single justice has dissented from the majority. Six cases have featured two dissenters, while the court has split 4-3 on seven occasions.

Democrats hold a 6-1 majority on the court. Newby is the only Republican justice. As one might expect, he has been the justice most likely to dissent from his colleagues’ rulings.

Beasley has voted with the court’s majority more than any other justice this year, in 112 of 113 cases (99%). She just edges out fellow Democratic Justice Robin Hudson, who has voted with the majority in 112 of 114 cases (98%). Each of the Democrats has voted with the majority in at least 92% of the cases they’re heard.

Meanwhile, Newby has sided with the majority in just 78% of the decisions. He has dissented 25 times, nearly three times as often as Justice Anita Earls, who ranks second in dissents with nine.

Throwing out the unanimous opinions, Newby has dissented in more than two-thirds of the 36 cases that divided the court. He has cast the single dissenting vote 16 times.

No Democrat on the Supreme Court has agreed with Newby more often than with Democratic colleagues. Justices Sam Ervin IV and Michael Morgan each have voted alongside Newby in 80% of the court’s cases, with Justice Mark Davis close behind at 79%. Newby has agreed with Beasley 77% of the time and with Hudson in 76% of cases.

The Supreme Court pairing with the most disagreement features Newby and Earls. They have reached different conclusions in 35 cases, leaving them with an agreement rate of just 69%. Newby and Earls have voted together in only one case this year that produced a split result.

Though Newby has become the court’s most frequent dissenting vote, he still has written 14 majority opinions this year. That places him in the middle of the pack. Hudson has written for the majority most often, 18, while Beasley and Davis have written the fewest majority opinions, 12 each.

Combining majority opinions, dissents, and concurrences, Newby has written more often this year than any other justice (38 times), with Earls ranking second with 26 total opinions. Beasley, the current chief justice, has authored 13 total opinions, the least among the seven-member court.

Beasley and Newby have written opinions in the same case three times this year. Each time Newby dissented from the chief justice’s majority opinion.

In June the Supreme Court handed down its 5-2 ruling in State v. Keller. Led by Beasley, the court ordered a new trial for a Lincoln County man. He had been convicted of online solicitation of sex from a teenage boy. Beasley and the court majority faulted the trial judge for failing to instruct the jury about the possible defense of entrapment.

Newby wrote for himself and Morgan in dissent. “The crucial event in this case is the moment defendant learned his prospective sexual partner was underage,” he wrote. “Once he learned that fact, he did not end his pursuit. Instead, he continued his undertaking to the point of driving to pick up his young victim. His actions demonstrate his predisposition to pursue such an illegal sexual encounter.”

The chief justice candidates wrote opposing opinions in two more cases in August. Of greatest consequence was their split in State v. Robinson. Writing for a 4-3 split court, Beasley and Newby took contrasting stances about moving a convicted murder off of death row.

Beasley and the court’s majority decided that the General Assembly’s repeal of the controversial Racial Justice Act did not mean that murderer Marcus Reymond Robinson should return to death row. In announcing the ruling, Beasley’s opinion also featured her own thoughts about the controversial act. It had allowed death row inmates to use statistics from other cases to challenge the validity of their death sentences.

“Today, we are not asked to pass on the wisdom of repealing a statutory mechanism for rooting out the insidious vestiges of racism in the implementation of our state’s most extreme punishment,” she wrote. “Instead, this Court must decide whether the North Carolina Constitution allows for that repeal to be retroactive. We hold that it does not.”

Newby responded.

“As a monarch, King Louis XVI once famously said, ‘C’est légal, parce que je le veux’ (‘It is legal because it is my will.’) Today, four justices of this Court adopt the same approach to the law, violating the norms of appellate review and disregarding or distorting precedent as necessary to reach their desired result,” Newby argued. “Apparently, in their view, the law is whatever they say it is.”

Voters will decide in the days ahead which view of the law they support. Beasley or Newby could preside over the Supreme Court and direct operations of the state court system through most of the 2020s.

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