As an institution, the North Carolina Supreme Court is used to settling disputes, not stirring them up, but that’s what’s happened because of a significant amendment to court rules of procedure. Basically, the rule “signed and entered” as it’s called on Nov. 8 allows the chief justice to call back retired justices to sit on individual cases on which the court might be deadlocked. That could happen if a justice had to recuse himself or herself from a case, and the remaining six justices tied 3-3 in deliberations.
The timing of this rule is interesting, since the court’s 4-3 Republican majority was reversed with the election of Democrat Mike Morgan over Republican incumbent Justice Bob Edmunds. The court’s supposed to be non-partisan, of course, but it has become increasingly politicized in recent years.
Some legal experts find the change curious in its timing and mysterious in its intent. Certainly it prompts questions: Will this allow Chief Justice Mark Martin, who is now to be in the conservative minority, to pick retired justices to break ties who agree philosophically with him? Is the change even legal under the state constitution?
And, the rule was instituted outside the traditional procedure for such a rule. The state Bar Association typically advises the court on such changes, and that wasn’t done in this case. There were no public comments sought.
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Mystery leads to suspicion, particularly when a government body is involved.
And all this comes as rumors are going through Raleigh that Republicans in the General Assembly, upset that the GOP majority on the Supreme Court was lost, may be considering adding two more justices to the high court, appointed by Republican Gov. Pat McCrory. Republican justices, after all, have supported bad redistricting decisions and others by lawmakers. A GOP-leaning majority could be helpful if Republican lawmakers continue their voter suppression efforts and gerrymandering on legislative districts, or even to draw new lines on city council and school board districts to reduce Democratic voting strength.
The truth is, ties on the Supreme Court are rare. Thus the necessity of this change becomes all the more suspicious as more a political maneuver than a “fix” to a perceived problem. Occasional deadlocks on appellate court panels, after all, are not a threat to the legal system, or the Republic.