A holiday break appears to have arrived at just the right time for the N.C. Supreme Court. Its final opinion day of 2022 revealed the depth of disagreement among the seven justices.
When five of those justices reconvene in 2023, joined by two new colleagues, it’s almost certain that the court will take on a different character. In place of the current lineup of four Democratic justices and three Republicans, the new court will feature a 5-2 Republican majority.
That court is unlikely to produce a group of opinions similar to those handed down on Dec. 16.
Justices decided 27 cases that day. Just one of those cases, involving child custody issues, featured all seven members signing on to the same opinion. (A second case featured a unanimous ruling with only five votes. Two justices took no part in that decision.)
In two other cases, all participating justices agreed to reach the same result, but Republicans wrote separately. Their concurring opinions expressed clearly that they were not adopting their Democratic colleagues’ reasoning. Those cases dealt with disputes over release of Greensboro police body camera footage and removal of a Confederate statue in Winston-Salem.
Among the remaining cases, 16 produced 4-3 splits. Nine of those decisions pitted the four-vote Democratic majority against the Republican minority.
The most high-profile party-line splits involved photo voter identification and election redistricting.
In Holmes v. Moore, Supreme Court Democrats agreed with a trial court panel that North Carolina’s 2018 voter ID law discriminated against black voters. The original court ruling also featured a party-line split, as two Democratic judges overruled a Republican colleague.
The high court’s voter ID decision prompted a dissent from Republican Justice Phil Berger Jr.
“In November 2018, the people of North Carolina overwhelmingly amended their constitution to include a voter-ID requirement based upon a simple belief — that would-be voters should be required to identify themselves prior to casting a ballot,” Berger wrote. “Enabling legislation in the form of [Senate Bill]. 824 was passed to effectuate the requirements of that constitutional amendment.”
“The plain language of S.B. 824 shows no intent to discriminate against any group or individual, and there is no evidence that S.B. 824 was passed with race in mind, let alone a racially discriminatory intent,” he added. “The majority relies, as it must, on a misapplication of relevant case law and on its own inferences to reach a contrary result.”
Berger and fellow Supreme Court Republicans contended that “legal error infected the entirety of the trial court’s decision.”
In Harper v. Hall, Supreme Court Democrats agreed with a different three-judge panel’s decision to throw out the Republican-led General Assembly’s congressional election map. But Democratic justices ruled that the panel also should have tossed out a state Senate election map. That map drew fire from left-of-center activists.
Republican Chief Justice Paul Newby’s 72-page dissent blasted Democratic colleagues for jumping into the election mapmaking process.
“To which branch of government does our constitution place the role of redistricting? The constitution expressly gives that responsibility to the legislative branch; even the majority so concedes. While paying lip service to this express grant of authority, the majority retains for itself the ultimate redistricting responsibility,” Newby wrote.
The chief justice reminded observers that Supreme Court Republicans warned back in February that Democrats planned to swipe redistricting authority from lawmakers.
“Today this prediction is fulfilled,” Newby wrote. “[T]he majority effectively amended the state constitution to establish a redistricting commission composed of judges and political science experts. When, however, this commission, using the majority’s redistricting criteria, reached an outcome with which the majority disagrees, the majority freely reweighs the evidence and substitutes its own fact-finding for that of the three-judge panel. Again, as predicted, ‘[t]he four members of this Court alone will approve a redistricting plan which meets their test of constitutionality.’”
In addition to these high-profile political cases, Democratic and Republican justices split in Dec. 16 decisions dealing with employee death benefits, admissibility of testimony in a criminal trial, the constitutional right to a lawyer, and other issues.
In a court that has consistently produced a majority of unanimous rulings, including 81% of cases decided in 2021, just 64 of this year’s 135 decisions (47%) featured unanimity. Forty cases, roughly 30% percent, produced 4-3 splits.
With senior Democratic Justice Robin Hudson retiring from the court, and fellow Democrat Sam “Jimmy” Ervin IV losing his re-election bid, the court is bound to operate differently next year. As the court welcomes new Justices Trey Allen and Richard Dietz, observers will watch for signs that the seven-member group has tapped a proverbial “reset” button.
Mitch Kokai is senior political analyst for the John Locke Foundation.