GOP legal nemesis accuses U.S. Supreme Court of judicial activism in Duke speech
The No. 1 legal nemesis of North Carolina’s Republican-led legislature over the past decade spoke as the guest of honor Tuesday at a Duke University symposium on redistricting. Fourth Circuit U.S. Court of Appeals Judge James Wynn had the audacity to declare the U.S. Supreme Court as activist for daring to reverse him.
This from the federal judge that:
- Allowed Gov. Roy Cooper and Attorney General Josh Stein to completely rewrite state election law through a “sue-and-settle scheme” just before the 2020 election, greatly delaying election results and resulting in a loss of confidence in the result.
- Ruled that partisan considerations were enough to make N.C. congressional election maps unconstitutional, a position soundly rejected by the U.S. Supreme Court.
- Blocked and continues to block North Carolina’s relatively germane legislative attempts to have North Carolina join a majority of other states in requiring identification for voting.
- Declared permissive voting procedures such as allowing out-of-precinct voting and same-day voter registration, passed by a Democrat-controlled legislature to further Democrats’ partisan goals, could not be scaled back or adjusted by a later General Assembly, one that happened to be controlled by Republicans.
- Was rebuked by the U.S. Supreme Court for ordering the legislature not only to draw new legislative maps but mandated that the legislature submit to an off-year special election while shortening the terms of legislators. The Supreme Court charged Wynn had not engaged in a sufficiently detailed review of the equitable balance that court-ordered special elections carried and had “barely exercised” his discretion.
In speaking at Duke’s Sanford School of Public Policy, Wynn declared the U.S. Supreme Court as activist for reversing his majority opinion in Rucho v. Common Cause, which ruled a congressional redistricting map unconstitutional because mapmakers had considered partisan advantage when drawing it.
Wynn said one definition of judicial activism looks to the processes that judges follow.
“In deciding a case, a judge engages in judicial activism when the judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case.” Wynn asserted that Rucho v. Common Cause is an example of such activism because the Court “disregarded several well-established decisional tools that were materially relevant to the decision of the case.”
“The Rucho Court fails to adhere to the well-established decisional tool that courts must fairly characterize parties’ arguments. Restricting courts to consider those arguments that are actually raised by the parties, ensures that the Court does not issue an advisory opinion or resolve questions or allowing arguments that are not developed. As Justice Kagan noted in her dissenting opinion, the Rucho court failed to abide by this principle. To begin with, the majority mischaracterized the legal theory proposed by the plaintiffs, and that was analyzed in the trial court opinion.”
The Supreme Court reversed Wynn, saying that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the review of the courts.
Wynn’s dressing down of the Republican-led U.S. Supreme Court is the ultimate pot calling the kettle black.
As Carolina Journal noted in 2018:
“Judge James Wynn, an Obama appointee serving on the 4th U.S. Circuit Court of Appeals, has repeatedly shown disdain for the Republican-led General Assembly,” according to State Rep. David Lewis,” the N.C. House Redistricting chair at the time.
Rep. David Lewis told Carolina Journal: “The pattern is that Judge Jim Wynn is going to rule against this legislature every opportunity he gets,” said Lewis.
In his most recent outrageous and partisan ruling, Wynn wrote the majority 4th Circuit opinion allowing the collusive settlement among Cooper, Stein, and national Democratic attorney Marc Elias to re-write election law through their sue-and-settle scheme. Wynn said the N.C. State Board of Elections could set the deadline for mail-in ballots at nine days after the 2020 election, rather than the three-day window written in state law. To reach his nonsensical conclusion, Wynn cited the Supreme Court’s 2006 Purcell principle, saying Republican-led lawsuits aiming to block the collusion, rather than the elections board’s participation in the collusion, were trying to change election rules in the middle of an election.
In 2014, Wynn wrote the majority opinion in League of Women Voters of North Carolina v. North Carolina that held that the provisions of the law that required photo identification to vote, reduced early-voting opportunities, and eliminated out-of-precinct voting, same-day registration, and pre-registration, were enacted with discriminatory intent, and thus, were unconstitutional.
After a three-year legal battle, the 4th Circuit Court of Appeals led by Wynn issued an opinion in July 2016 striking down House Bill 589 in its entirety because the court found it was passed with the intent to discriminate against the state’s African American voters, in violation of the Constitution and Section 2 of the Voting Rights Act.
The opinion, supported by Wynn, included one of the most inflammatory lines you will ever see in a judicial opinion, saying the bill was designed to “target African Americans with almost surgical precision,” eliminating or reducing those voting practices most commonly used by blacks in the state.
A much simpler explanation is that Republicans did not like some of the Democrat legislatures’ voting changes and wanted to reverse them. There was never one shred of evidence that the GOP targeted anybody, especially voters of color. Wynn could have struck down the law saying the result was discriminatory. Instead, he helped gift-wrap a political attack for Democrats while striking down reasonable changes to voting procedures that people passionately disagree about.
The Duke speech does not mark the first time Wynn has accused the Supreme Court of acting in a partisan manner.
In an address similar to the one presented at Duke, Wynn told a New York University audience, ironically:
“The Supreme Court still enjoys a pretty high level of confidence from the voters out there. But I do fear that … the connection of judges with the president that appointed them or the party that they have been associated with, will tell you the outcome in a case before you even know fully what the case is about. And that’s not a good thing. Ultimately, the judicial branch needs to maintain independence.”
Any Republican legislator in North Carolina knows the “outcome in a case before you even know fully what the case is about,” if Democrat Judge Jim Wynn is on the case.
The Woodshed, by investigative political analyst Dallas Woodhouse, is a unique blend of news and opinion based on his expertise and years of experience in North Carolina’s political trenches. For more follow him on Twitter at @DallasWoodhouse