The following editorial appeared in the Fayetteville Observer:
We hear a lot about judicial activism these days, but we don’t often see it. In most cases, judges on the appellate level hear arguments, interpret the law and issue a ruling. They do their job, deciding how the Constitution and law apply to situations our Founders couldn’t possibly foresee.
Activism complaints come from politicians and politically active people, for the most part. If a court decision is perceived as liberal-leaning, conservatives are offended. If the decision appears to lean right, the left is incensed.
Judges seldom drop hints. They follow a tight code that generally prevents them from taking a stand on the issues of the day, because those issues are likely to show up in their courtrooms, especially at appellate levels. The only way we have to know what to expect from a judge is to read that jurist’s previous decisions and try to see a path. That was easy with a flamboyant judge like the late Supreme Court Justice Antonin Scalia, whose decisions were reliably conservative, and with his best friend on the court, Ruth Bader Ginsburg, whose decisions consistently lean the other way.
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But most justices keep their cards closer to their vests, especially in places like our state Court of Appeals and Supreme Court. Deciding how to vote for appellate justices in North Carolina can be challenging.
But last week, we saw a rare deviation from that norm, a surprising revelation by a North Carolina Supreme Court judge who attended a Fayetteville rally supporting controversial House Bill 2, nicknamed the “bathroom bill.”
Justice Paul Newby was a guest speaker at the rally – “Heart & Soul: A Night of Prayer and Worship.” What he had to say may haunt him in future cases before his court. While the 61-year-old justice, who is in his second term, didn’t specifically endorse HB2, he alluded to it, recounting meetings with pastors from California and Maine who said they are praying for North Carolina to uphold the law. He added: “Let me tell you as a judge, our religious liberties are hanging by a thread.”
The state Code of Judicial Conduct says judges “should abstain from public comment about the merits of a pending proceeding in any state or federal court dealing with a case or controversy arising in North Carolina.” HB2 is subject of several cases, and Newby’s comments came as a three-judge panel of the federal 4th Circuit Court of Appeals was about to release a split decision upholding Rowan County commissioners’ right to open their meetings with a Christian prayer.
Judge Newby just tipped his hand forevermore. There may be some recusal requests and other problems in his future.
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