Gov. Roy Cooper’s legal team is counting on the N.C. Supreme Court to overturn a recent trial-court ruling in a dispute over state elections management. If the case pits the high court’s four Democrats against its three Republicans, it will produce a rare result.
Just two of 51 state Supreme Court opinions handed down this year have produced 4-3 partisan splits. In contrast, 42 cases (82 percent) have produced unanimous results among the seven justices.
The latest opinions issued Friday fit with the pattern of a court that strives to reach agreement. All nine newly decided cases yielded 7-0 results.
Each justice has agreed with the majority at least 90 percent of the time this year. Even the most disagreeable pair of justices agreed on four out of every five cases.
A closer look at the numbers shows that the outcome of state Supreme Court cases depends on shifting coalitions that defy a strict partisan interpretation.
Democrat Robin Hudson leads the court with the most appearances, 49 (96 percent), among the majority. But there’s not much gap between Hudson and the court’s most frequent dissenter, Republican Paul Newby. Newby has voted with the majority 46 times (90 percent). He has dissented just five times.
Just as important, Newby ranks second among the justices this year in written majority opinions. If his analysis of the court’s constitutional questions proved objectionable to a majority of his colleagues, Newby would not have had the chance to write six majority opinions. Only Democrat Sam Ervin IV’s nine majority opinions top Newby’s tally.
Ervin’s pen has been especially busy. Not only has he written most often for the Supreme Court’s majority. He’s also written the most dissents: three. Ervin’s grand total of 12 opinions represents more than twice as many opinions as four of his colleagues. The only exceptions are Newby (nine) and Republican Chief Justice Mark Martin (eight), counting all majority opinions, dissents, and concurring opinions.
It’s hard to identify consistent voting blocs. But evidence exists that party labels might reflect at least some degree of divergence in judicial philosophies.
Republicans Martin and Newby have agreed on the results in 50 of 51 cases this year. It’s important to specify “on the results,” since there’s one September case, Catawba County ex rel. Rackley v. Loggins, in which Martin and Ervin agreed with colleagues only in the case’s outcome. Martin’s concurring opinion in Catawba County explained why he and Ervin took a different legal path to reach the same result as the other five justices.
If one treats that concurrence more like a dissent, then Martin and Newby have agreed in 49 of 51 cases. Newby and Republican Barbara Jackson also have agreed in 49 of 51 cases. Among the Democrats, the most closely aligned pair, Hudson and Cheri Beasley, also have agreed 49 of 51 times.
The Democrat Beasley and the Republican Newby have disagreed most often among the seven justices. In fact, other than the Catawba case, every other instance of a split court has featured Beasley on one side of the issue and Newby on the other. Beasley’s sided with the majority five times in these split cases, while Newby has been with the majority four times.
It’s important to remember that these two justices still agreed in 42 of 51 cases. That’s 82 percent agreement among the justices who disagreed most often. Newby signed on to four of Beasley’s five written majority opinions. Beasley backed five of Newby’s six majority opinions.
The Republican Newby and the Democrat Ervin serve as colleagues now, five years after they waged a closely contested, high-profile 2012 election contest. Though officially nonpartisan, that election attracted significant interest from both major parties. The incumbent Newby beat the challenger Ervin by a 52-48 margin.
Regardless of their history, these two former electoral combatants have agreed on the results in 45 of 51 cases (88 percent) this year. Newby has backed six of Ervin’s nine majority opinions, while Ervin has signed on to five of Newby’s six majority opinions.
The newest justice, Democrat Mike Morgan, flipped the Supreme Court’s partisan majority from 4-3 Republican to 4-3 Democrat when he unseated Republican incumbent Bob Edmunds last fall. That doesn’t mean Morgan has offered a consistent fourth vote for Democratic colleagues.
This year’s first 4-3 Supreme Court split, in March, involved a case in which Morgan joined the three Republicans to support a majority opinion written by Newby. And while Morgan has aligned most frequently with Democrats Beasley and Hudson (46 of 49 cases), he’s also sided with Republicans Jackson (45 cases) and Newby (44) more often than fellow Democrat Ervin (43).
None of this background information precludes a clear partisan split in the Supreme Court’s pending decision in Cooper v. Berger. That’s the case pitting the Democratic governor against the Republican-led General Assembly in a battle over a law merging the state’s elections and ethics boards.
But this year’s record suggests that the high court’s seven justices work together in ways that defy simplistic partisan analysis.
Observers will have another chance to gauge the court’s cohesion when it issues its next batch of opinions on Dec. 8.
Mitch Kokai is senior political analyst for the John Locke Foundation.