The people of North Carolina, through the democratic electoral process, decided they believe judges should make clear interpretations of the law, not create law or policy whole-cloth by legislating from the bench.
Judicial activism can end in our state’s highest court — as long as the originalists on the court stick with originalism.
Starting this month, the North Carolina Supreme Court will have a 5-2 conservative majority with the election and swearing in of Justices Trey Allen and Richard Dietz. Allen and Dietz both described themselves as originalists on the campaign trail. As a result, we can expect that they, along with their other conservative colleagues, will return proper judicial review and constitutional jurisprudence to the N.C. Court as a majority on the bench.
Originalism is arguably the method of jurisprudence intended by the framers when they crafted Article III of the U.S. Constitution. It is what Alexander Hamilton described in the Federalist Papers about the judiciary and was in practice in American courts via judicial review even before Marbury v. Madison.
However, originalism, as a modern legal philosophy, was made famous by the works and jurisprudence of Robert Bork and Antonin Scalia and propelled today by legal scholars following in their footsteps — from libertarians like Randy Barnett, conservatives like Stephen Sachs, and even liberals like Akhil Reed Amar. A bulwark principle of the Federalist Society, it is the preferred legal methodology for conservatives and constitutionalists alike.
Today, the U.S. Supreme Court boasts several self-identified originalists in Justices Barrett, Kavanaugh, Gorsuch, and Thomas (though some may argue that Justice Alito and Chief Justice Roberts are originalists of some degree, too). It seems we will likewise have an originalist majority on the N.C. Supreme Court.
What should one expect from an originalist judge?
At its basic level, originalism promotes the concept that the people make laws via their elected representatives. The legislative process or the amendment process within the Constitution creates or alters statutes and laws. It is the role of a judge to perform judicial review — to place a check on the other branches if they violate the supreme law — and perform legal interpretation of the laws, making clear what the law is and is not. They are not meant to create laws or new policies from the bench.
Originalists believe that the supreme law — the U.S. Constitution, for us combined with the N.C. Constitution — provides the guardrails for a judge’s interpretation. It is not up to a judge to decide what the law should be or to impose his or her policy preferences into the law as written.
It is not the purpose of originalism to have consistent conservative results. Indeed, originalism, properly applied, can and should result in both liberal or conservative outcomes at times because judges should not be steering the ship towards specific policy goals but instead clearly interpreting the law that is before them. Even Justice Scalia recognized that applying originalism, at times, may produce personally unpreferable but still constitutional results.
To be sure, there are different flavors of originalism. For example, some originalists place heavier emphasis on history and original meaning or intent than others, some place a heavier emphasis on the text without the history, but almost all originalists will start with the text and then move into the history if needed. Nevertheless, as described above, originalists are united in their belief on what a judge’s institutional role is and is not.
North Carolinians who believe in constitutional first principles should let out a sigh of relief at the judicial electoral outcomes in November. However, the proof will be in the actions of the new court.
The court can now practice what many conservatives have been preaching. Finally, after years of a liberal majority on the court and evident partisan judicial activism, they can return constitutional first principles to the judiciary in North Carolina.
It may be tempting to engage in conservative judicial activism as a “now it is our turn” way of thinking. That would be disappointing.
We now have originalists at the helm of judicial review in our state. May they steer the ship of the supreme law the way the founders intended.
André Béliveau is the strategic projects and government affairs manager at the John Locke Foundation. He is an MA in government candidate at The Johns Hopkins University and previously served as a policy advisor in the North Carolina Senate.