Republican justices focus on fundamental principles, not politics
Left-of-center critics accuse North Carolina’s Republican-led state Supreme Court of playing politics with three election-related rulings issued Friday.
No, responds Chief Justice Paul Newby. The court is returning to its traditional role in the state’s system of limited constitutional government. Newby explained why and how during the first 10 pages of his 146-page majority opinion in the election redistricting case titled Harper v. Hall.
“The constitution is our foundational social contract and an agreement among the people regarding fundamental principles,” Newby wrote. “It is for everyone, not just lawyers and judges.”
“The state constitution is different from the Federal Constitution: the Federal Constitution is a limited grant of power while the state constitution is a limitation on power,” Newby added. “The state constitution declares that all political power resides in the people. The people exercise that power through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”
In addition to spelling out the legislature’s leading role in government, the state constitution states in plain words what it means, Newby wrote. “There are no hidden meanings or opaque understandings — the kind that can only be found by the most astute justice or academic,” he argued. “The constitution was written to be understood by everyone, not just a select few.”
The document uses clear language to spell out duties for the three distinct branches of government. “Separation of powers protects individual freedoms,” Newby wrote. “The will of the people is achieved when each branch of government performs its assigned duties. When, however, one branch grasps a task of another, that action violates separation of powers.”
Newby leads the judicial branch, which “is designed to resolve legal disputes and to ensure that the other branches do not violate the constitution,” he wrote. “Our power of judicial review, however, is not unlimited.”
The chief justice notes N.C. courts’ respect for “their significant but restrained role of judicial review.” “[C]ourts presume that an act of the General Assembly is constitutional, and any challenge alleging that an act of the General Assembly is unconstitutional must identify an express provision of the constitution and demonstrate that the General Assembly violated the provision beyond a reasonable doubt.”
Courts should not wade into public policy disputes, in Newby’s view. “Such engagement in policy issues forces courts to take sides in political battles and undermines public trust and confidence in the judiciary,” he wrote. “Choosing political winners and losers creates a perception that courts are another political branch. The people did not intend their courts to serve as the public square for policy debates and political decisions.”
After setting out basic principles. Newby applied them to the case of state election maps. “At its heart, this case is about recognizing the proper limits of judicial power,” the chief justice wrote. His Harper v. Hall opinion criticizes the previous state Supreme Court for meddling in a political issue. The state constitution delegates election redistricting to the General Assembly.
Yet four Democratic justices decided that the constitution banned partisan gerrymandering. Those same justices refused to set a clear standard to guide lawmakers moving forward.
“Thus, we must now reconsider whether a standard that only four justices know and understand, that is riddled with policy choices, and that is not mentioned in our constitution is truly judicially discoverable and manageable,” Newby wrote. “Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”
Even if the court could limit lawmakers’ work, “there is no judicially discoverable or manageable standard for adjudicating such claims,” Newby wrote.
In other words, there’s no way for the court to set out clear rules. “The constitution does not require or permit a standard known only to four justices,” Newby explained.
The chief justice’s comments applied specifically to Harper v. Hall. But the sentiment extended to his colleagues’ decisions in two other cases decided Friday. In Holmes v. Moore, the court’s 5-2 majority reversed an earlier ruling about North Carolina’s 2018 voter ID law. Unlike their Democratic colleagues, the court’s Republicans presumed that the law approved by the General Assembly was constitutional. Absent any real evidence that the law would discriminate against any voter, justices ruled the law should stand.
In Community Success Initiative v. Moore, justices presumed that a 1973 law regarding voting rights for felons was constitutional. Without any real evidence that the law was designed to discriminate against any potential voter, the court rejected attempts to discard felon voting restrictions.
Newby and his Republican colleagues have refocused the state Supreme Court on its restrained role in government. It’s a goal tied to the “frequent recurrence to fundamental principles” mentioned in Article I, Section 35 of the N.C. Constitution. That focus is “absolutely necessary to preserve the blessings of liberty.”
Mitch Kokai is senior political analyst for the John Locke Foundation.