They ought to know better.
“They,” in this case, refers to partisans and pundits who support the N.C. Supreme Court’s recent decision in the long-running Leandro education funding case.
They fear a new state Supreme Court could reverse the decision next year. They lament that such a reversal would fail to respect the importance of the court’s precedents. Yet they neglect to account for the fact that the Leandro decision itself ignored years of precedents, including one bipartisan decision that was less than two years old.
In a party-line 4-3 ruling on Nov. 4, the high court’s Democrats mounted an unprecedented assault on the state constitution’s separation of powers. Democratic justices decreed that the judicial branch of state government can overrule the legislative and executive branches in deciding how much taxpayer money North Carolina should devote to public education.
Moreover, Democratic justices ruled that a trial judge can ignore the General Assembly’s power of the purse. The judge can order state officials to transfer money out of North Carolina’s treasury without any input from state legislators.
That decision arrived four days before N.C. voters decided to change the state Supreme Court’s partisan composition. In place of the current 4-3 Democratic majority, the Supreme Court that begins hearing cases in January will have a 5-2 split favoring Republicans.
Justice Robin Hudson, who wrote the Democrats’ Leandro opinion, is retiring. Fellow Democrat Sam “Jimmy” Ervin IV lost his re-election bid. Take their two votes away, and Republican justices would have had a 3-2 majority in the Leandro case. Treating Republicans’ dissent as the majority decision in that scenario, the court would have rejected judicial interference in the legislature’s decisions about education funding.
But that’s not how the system works. Hudson and Ervin hold their offices through the end of the year. They had the right to cast decisive votes in the Leandro case.
That doesn’t mean their decision now must be carved in stone. Arguments to the contrary fall flat.
David Hinojosa is a lawyer with the left-of-center Lawyers’ Committee for Civil Rights Under Law. He has represented clients arguing for court-ordered education spending. Hinojosa claimed in a News and Observer interview that it would be “wholly unjustified” to delay enforcement of the Supreme Court’s order.
“The last thing that the public would want would be an activist court revisiting questions of law that have already been settled for no good reason other than they just disagree with the prior decision,” Hinojosa told the newspaper.
The original Leandro plaintiffs’ longtime lawyer offered a similar argument. “If the court tries to revisit the 140-page opinion — this thoroughly researched opinion — after the election, it will lose any semblance of independence or integrity that it ever had,” said attorney Melanie Dubis.
Matt Ellinwood of the left-wing N.C. Justice Center echoed these concerns. “To go back and change a historic decision so quickly would really damage the legitimacy of the court,” he told the N&O. “People would not know how to follow the laws of the state if it can so easily change based on the makeup of the court.”
It’s interesting to see this newfound respect for precedent among supporters of the Nov. 4 Leandro ruling. I say “newfound” because the Leandro decision rejected clear state Supreme Court precedent.
No prior state Supreme Court ever had endorsed a decision that would bypass the General Assembly’s complete control over disbursements from the state treasury. The most recent decision confirming the legislature’s power of the purse dated back just two years.
In a December 2020 case dubbed Cooper v. Berger, Hudson and Ervin joined three Democratic colleagues and one Republican in a 6-1 majority. Justices ruled in favor of the Republican-led General Assembly in a squabble with Democratic Gov. Roy Cooper. The disagreement involved federal block grant money.
“The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” Ervin wrote. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly.’”
As far back as 1776, state constitutional framers gave the General Assembly “full and exclusive control over the allocation of the state’s expenditures,” Ervin added. “As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’”
The Leandro decision misread the language “no man can misunderstand.” It ignored Cooper v. Berger’s ruling confirming the General Assembly’s “exclusive prerogative” over the public purse. Democratic justices overturned a bipartisan precedent after less than two years.
One could make a strong argument that the Leandro decision displayed evidence of an “activist court” paying little attention to judicial “independence,” “integrity,” or “legitimacy.”
Even those who agree with the Leandro decision should recognize that the ruling marked a sharp divergence from history and precedent. Reversing that ruling would not damage the state Supreme Court’s credibility. A reversal would be more likely to restore justices’ credibility.
Hinojosa, Dubis, Ellinwood, and their ideological allies ought to know better.
Mitch Kokai is senior political analyst for the John Locke Foundation.