In a 4-3 staunchly partisan ruling, the Republican majority of the N.C. Supreme Court recently stuck to its guns in the racial gerrymandering case, Dickson v. Rucho. The court effectively re-embraced its earlier judgment, downplaying the intervening directive of the U.S. Supreme Court. Not a person in North Carolina was surprised. Certainly no lawyer or politician expected these four to bite the hand that so determinatively feeds them. Politics drove the train. Constitutional law grimaced from the shadows.
The hyper-partisanship of the N.C. Supreme Court’s election law rulings is of recent vintage. In Stephenson v. Bartlett (2002), without a whiff of legal justification, the Republican-dominated court invalidated the Democratic legislature’s districting plan in favor of its own. On a front central to representative government, the justices engaged in intense, ideological, precedent-defying activism in order to aid the Republican Party. The wages of the transgression have been dramatic.
Realizing the altered landscape, leaders of both parties began to preach, for the first time, that Supreme Court elections were an essential component of political supremacy. The dynamic has been captured most crisply by Republican consultant John Davis: “Lose the courts, lose the war.” The Republican majority can initiate radical reform, Davis teaches, “but Supreme Court races are critical for long-term Republican dominance.”
By 2012, money had begun to speak more forcefully than the pleadings of politicos. With the partisan make-up of the court in the balance, Republican funders literally purchased a seat for Paul Newby. As Election Day approached, Newby trailed his challenger by huge margins. Suddenly, folksy ads involving bloodhounds and banjo pickers appeared pervasively on Newby’s behalf. About $3 million from Republican PACs swiftly turned the tide. Newby got 52 percent of the vote.
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Next, the Republican legislature played to economic advantage and ended public funding for Supreme Court races. In the 2013-14 cycle, both parties poured in dollars, achieving the country’s second-highest state spending level on judicial races. The General Assembly then altered the process used to challenge legislative enactments, gave the justices sole authority to discipline judges, including themselves, and switched, at least temporarily, to retention elections for Supreme Court justices – helping ensure continuing Republican ascendancy. No meddling stone was left unturned.
Dickson v. Rucho adheres faithfully to the partisan path by upholding the legislature’s much-gerrymandered districts. In sweet irony, the opinion was written by Justice Newby himself – poster fellow for purchased political tampering. Litigants challenging the districts had repeatedly asked Newby to recuse himself. He had, after all, been the beneficiary of millions of dollars of electoral largesse delivered, effectively, by one of the parties to the lawsuit.
He steadfastly refused. How could he be expected to deny his benefactors the single result they so earnestly sought? Not only would he decline to step aside, he penned the ruling. Message delivered.
My claim is not that those who dominate the N.C. Supreme Court are evil. It’s that they are, by now, dependent. Once you opt in to the partisan game, it becomes increasingly challenging not to dance with them that brung you. Maybe the Democrats would have done the same – if they had the money and the wit to pull it off. It’s hard to say. But what we have is what we have. And a court that answers to political masters is, by definition, not engaging in independent judicial review.
That doesn’t mean, of course, that the court never plays it straight. Most cases don’t trigger intense partisan interest. But in many crucial electoral and constitutive determinations – redistricting, voter access, racial distortion, the abuse of municipal prerogative, interference with judicial review, the marginalization of lesbians and gay men, the abrogation of the traditional rights of teachers – the interest of partisan patrons is both surpassing and patent. Any Republican jurist who bucks the tide jeopardizes high station.
As if to make the point, once on the job, the new chief justice quickly authored the odd and controversial ruling in the school voucher case. He may seek to usher in a new day, but Mark Martin has always been the most politically connected member of the court. Unsurprisingly, his knee was first to bend in homage to the legislative leadership. He’ll find it challenging to be a judge four days a week and captain of the party caucus on the fifth.
When the U.S. Supreme Court sent the Dickson case back to Raleigh for review, Sen. Bob Rucho said he was “confident that our state Supreme Court will once again arrive at the same result.” When he said “our,” he was speaking as a Republican, not as a Tar Heel. The North Carolina Supreme Court is indeed “supreme” on an array of state law issues. It’s harder, these days, to call it a “court.”
Gene Nichol is Boyd Tinsley Distinguished Professor at UNC-Chapel Hill.