It matters whether Republican Ted Budd or Democrat Cheri Beasley wins the U.S. Senate seat being vacated by Richard Burr. It matters whether the Republicans win legislative supermajorities. It matters whether Democrats can cut into the GOP’s increasing domination of local elections in rural and suburban areas, or whether Republicans can make inroads in county and school board races in North Carolina’s fast-growing metros.
All the elections on the ballot this year matter in some way, to someone. But to my mind, the most consequential races of 2022 are the two for North Carolina Supreme Court. The results will shape our state’s constitutional order for years to come.
Both seats up this year are currently occupied by Democrats. One is an incumbent seeking reelection, Justice Sam Ervin IV. His Republican challenger, Trey Allen, currently serves as general counsel for the state’s court system. The other seat in question is currently held by retiring Justice Robin Hudson. That race pits two sitting members of the state court of appeals against each other: Republican Richard Dietz and Democrat Lucy Inman.
There are no unqualified or fringe candidates here. All four have substantial legal careers. Three of them have prior experience in the appellate courts adjudicating often-complex issues. Before his election to the Supreme Court, Ervin spent many years in private practice and then served on the state’s utilities commission and court of appeals. Prior to their appeals-court service, Dietz was a highly accomplished litigator — including arguments before the U.S. Supreme Court — while Inman spent time as a private attorney, news reporter, and trial-court judge. As for Allen, his prior employment includes stints as an appellate litigator, professor at UNC-Chapel Hill’s School of Government, and judge advocate in the Marine Corps.
What makes these two races so important is the extent to which the North Carolina Supreme Court has increasingly inserted itself into policy questions.
In the long-running Leandro litigation about school funding, for example, plaintiffs have repeatedly “won” decisions affirming the right of every child to the opportunity for a sound, basic education. But affirmations aren’t what the plaintiffs and their supporters wanted. They wanted the Court to order the legislature to appropriate vastly more tax dollars to public schools. Indeed, after striking a collusive settlement with state attorneys, they then hired a left-wing organization to create a set of expensive education policies that they hoped the Supreme Court would order the General Assembly to adopt.
Will these policies deliver enough educational improvement to justify their cost? That’s a good and debatable question. It is not, however, a question for the judiciary to settle — though it is obvious that Democrats want the justices they have nominated to do precisely that.
Similarly, Ervin recently joined a 4-3 decision that struck down two amendments that North Carolinians voted in 2018 to add to their state constitution. One required voter ID to cast a ballot. The other lowered the constitutional cap on income taxes to 7%, down from 10%. The Democratic majority argued that because some of the lawmakers serving in 2018 had been elected in districts subsequently struck down in the courts, they shouldn’t have exercised their authority to place the amendments on the ballot.
But the Democratic justices didn’t stop there. They also accepted and endorsed policy objections about the voter-ID and tax-cap provisions made by the plaintiffs. As I noted at the time, they essentially concluded that an unambiguously democratic outcome (voters approving the two amendments by large margins) was somehow a threat to democracy!
These are just two examples of the attempt to make the Supreme Court a policymaking body. That’s not its proper role, however. If voters want a different cast of characters deciding what North Carolina’s policies ought to be — on schools, taxes, crime, or a host of other issues — they can elect different lawmakers in a few days or different executives in a couple of years.
Supreme Court justices aren’t supposed to be on that cast list.