Opinion: The Woodshed

Supreme Court Dems ditch effort to disqualify GOP justices

Democrats on the state Supreme Court will not use their narrow 4-3 majority to forcibly remove two GOP justices from a critical case dealing with state constitutional amendments. In an order released without fanfare just before Christmas, the court has in essence preserved the status quo. It has preserved a practice that’s been in place for more than 200 years: An individual justice alone will decide if he or she has a conflict that prevents fair evaluation of a case.

In a new order, North Carolina’s highest court ruled there are two routes that an individual justice can take when weighing a request to be removed from hearing a case due to an alleged conflict of interest.

As has been standard procedure for two centuries, individual justices can decide on their own if they have a conflict. Should a justice take that route, the decision is not reviewable by either the full court or the Judicial Standards Commission. The court did note that an individual justice can ask the rest of the court to act on a recusal or disqualification motion, but they have no ethical or legal obligation to do so.  Whichever option is used, the ensuing ruling is final, the order said.

There will be no option to force a state Supreme Court justice off a case against his or her will.

In the short term, it means Justices Phil Berger Jr. and Tamara Barringer can choose to participate and deliberate in NAACP v. Moore, a critical case to decide the validity of two constitutional amendments passed by voters in 2018. They are expected to do so.

A motion filed by legislative defendants asking the court to remove Justice Anita Earls due to her conflict as a former NAACP attorney, if and when the court entered the business of forced removals, is now moot. Motions filed in several other cases to have Berger forcibly removed will be decided by Berger alone, unless he chooses to submit the issue to his colleagues.

The decision marks the resolution of a controversy first exposed by Carolina Journal in September and reported in-depth through a multimedia reporting project and podcast at ExtremeInjustice.com.

The NAACP filed a motion on July 23 to disqualify Republican Justices Tamara Barringer and Phil Berger Jr. from hearing a case called NAACP v. Moore. The case will determine whether two voter-approved amendments will remain in the N.C. Constitution. The amendments approved in 2018 would mandate voter ID for elections and lower the state’s income tax cap.

The amendments’ opponents argued that Barringer should be disqualified because she voted to place the targeted amendments on the statewide ballot while serving as a state senator in 2018. The opponents called for Berger’s removal because his father leads the N.C. Senate. In his official capacity, Sen. Phil Berger’s name appears as a defendant in the NAACP v. Moore case.

The Supreme Court had never voted to remove colleagues forcibly from a case in more than 200 years of operation. Acting on the NAACP’s request would have been unprecedented.

The July 23 motion attracted little attention until the NAACP v. Moore case disappeared from the Supreme Court’s oral arguments calendar just days before justices were scheduled to hear the case in late August.

Within days of the case’s unusual disappearance from the calendar, Carolina Journal learned that the court, with its 4-3 Democratic majority, was seriously considering removing the two Republican justices. Such an unprecedented move would have given Democrats a temporary 4-1 majority when deciding the constitutional amendments case.

The court confirmed Carolina Journal’s reporting when it issued a Sept. 28 order to lawyers working on NAACP v. Moore. The order issued a series of questions asking about forced removal of justices.

Once the process became public, members of the N.C. legal community joined the debate. Three former chief justices of the state Supreme Court, including two Democrats, wrote an op-ed defending the long-standing practice of allowing justices to make their own decisions about whether to hear a case.

Supporters and critics of forced removal submitted competing friend-of-the-court briefs. Attorneys for legislative defendants in the case urged the court to avoid forcing any justices off the case. But they filed another motion suggesting that if Barringer and Berger were removed, the court should also disqualify Democratic Justice Anita Earls. Earls’ prior legal work and current membership in the NAACP presented her with a conflict of interest at least as compelling as those of Barringer and Berger.

The John Locke Foundation, which oversees Carolina Journal, joined the North Carolina Institute of Constitutional Law in filing  a brief urging the court to respect the will of the voters and allow the GOP justices to remain as participants in the amendments case.

“[We] believe that involuntary recusal of an elected justice would impair the rights of voters and compromise the constitutionally mandated selection of Justices by statewide election,” wrote Jeanette Doran, NCICL president and general counsel. “Forcing the disqualification or recusal of a Justice would message to voters that their votes do not matter, that the Supreme Court could effectively override election results on a case-by-case basis, and that voters in future elections should not bother to participate in judicial elections. That should not be the Court’s message.”

“As we have stated from day one, it is the job of the state Supreme Court to provide the ultimate General Court of Justice for North Carolina citizens, and it is up to voters to determine who sits on the Court — not a strange judicial oligarchy,” said John Locke Foundation President Donald Bryson. “While the outcome is correct, the fact that the court would seriously entertain a motion to remove other court members based on partisan allegiance has possibly damaged the court’s legitimacy in the eyes of the public. We will never know what exactly was the determining factor here, but there is no doubt that the dedicated journalism performed by Carolina Journal to expose this scheme performed a valuable public service.”

Now that the issue of forced removal has been resolved, the Supreme Court will return to the merits of the NAACP v. Moore case. There’s no timeline for a final decision on the matter.