Having lost its narrow majority on the North Carolina Supreme Court through a free and fair election, the Republican-controlled General Assembly is reportedly considering tilting the court’s balance back by adding two seats and filling them with Republicans, which could have major implications for litigation over redistricting and the gubernatorial election.
Such an attempt to thwart the will of the people would be disgraceful—political hackery, rather than ordinary politics, let alone political leadership. Voices of reason in both parties should reject any such “court-hacking” plan.
Last week, North Carolina voters chose Wake County Superior Court Judge Mike Morgan, a Democrat, over incumbent Justice Bob Edmunds, a Republican, for the single open seat on the state Supreme Court. The result wasn’t particularly close: Morgan won by more than nine percentage points.
Within days, reports began to emerge from Raleigh that the General Assembly is considering expanding the court by two seats during a special session to deal with Hurricane Matthew relief. If this were done quickly enough, scheming Republicans apparently believe Gov. Pat McCrory could fill those seats, allowing Republicans to retain a court majority despite the election results. (It is not crystal clear, however, whether the governor would have the power to make the appointments, or whether judicial elections would have to held.)
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We have seen this kind of thing before. In 1937, President Franklin Delano Roosevelt announced a plan to expand the size of the U.S. Supreme Court, which had repeatedly struck down major provisions of his New Deal economic recovery plan. FDR felt confident that his “court-packing” scheme would succeed: Democrats enjoyed huge majorities in the House and Senate, the U.S. Constitution does not require the Supreme Court to have nine Justices, and Congress had changed the number of justices several times during the first half of the nineteenth century.
But, as FDR quickly learned, the number had been maintained at nine since 1869 in order to limit partisan threats to judicial independence. A custom against court-packing had developed to guide political officials in their exercise of discretion and keep their influence on the judiciary within reasonable bounds.
Despite the Democrats’ power and popularity, FDR’s proposal was widely opposed on the ground that it would undermine the proper functioning of the courts. The Senate Judiciary Committee – controlled by FDR’s own party – characterized the plan as “an invasion of judicial power such as has never before been attempted in this country.” Widely condemned as both unconstitutional and anti-constitutional, the plan stalled, and by the end of the year it was dead.
Roosevelt’s attempt at court-packing is regarded as one of his presidency’s lowest moments, and its rejection a vindication of basic principles of judicial independence. But in recent years, similar schemes have made a troubling resurgence at the state level, even though most state judges (unlike federal judges) can be voted out of office and so are more democratically accountable. Such efforts have gained traction in Georgia, Arizona, Florida, South Carolina, and Iowa, just to name a few.
A court-packing attempt in North Carolina right now would set a new low. Although court-packing is problematic no matter when it happens, attempting it in the final days of a governor’s administration (assuming Roy Cooper’s lead holds and is honored), based on presumed future disagreement with a court majority that has not even been seated yet and against the just-expressed will of the state’s electorate, would be utterly unprecedented – court-hacking, not just court-packing.
At a time when faith in governmental institutions is plummeting and frustration with partisan politics is at an all-time high, further injecting partisanship into the judicial branch would be a terrible mistake.
And, to be clear, doing so could be explained only on partisan grounds. There is not, for example, a serious “good government” argument that the court needs more personnel in order to hear more cases or dispose of them more quickly. The most recent Statistical and Operation Report of the state appellate courts indicates that the court’s workload has not increased over the past decade.
To be sure, the text of our state constitution does give legislators the power to add new seats to the court. Article IV, Section 6, states that the General Assembly can increase the number of Associate Justices (currently six) up to eight. Adding the Chief Justice, that would make for a shift from seven to nine members.
It does not follow, however, that this power can be exercised under any circumstances and for any reason – including for partisan political purposes to defeat the potential consequences of a recent election – just as it does not follow from the text of the U.S. Constitution that there are no constitutional limits on packing the U.S. Supreme Court.
What is more, because it is widely understood that the point of hacking the state supreme court is to give the Republicans a majority in potential litigation over redistricting and the outcome of the recent election for governor, the two new Republican appointees would almost certainly have to recuse themselves in such litigation anyway, in line with the U.S. Supreme Court’s due process precedent regarding judicial recusal.
Most importantly, even if court-hacking were deemed legal and proved successful, such a conclusion and result would not make it right, any more than Congress’ general power to regulate the size of the U.S. Supreme Court justified FDR’s power grab. Testifying before the Senate in 1937, Harvard Law School Professor Erwin Griswold noted that the legality of FDR’s proposal was debatable, but that “(t)he constitutionality of the proposal is not the real issue,” because “not all things that are constitutional are things that should be done.”
The will of the people with regard to the state Supreme Court is clear. The General Assembly should respect it.
Joseph Blocher and Neil S. Siegel are law professors at Duke Law School.