The first six months of the new NC Supreme Court majority

Happy Saturday. Thank you for tuning in.
 
We’re nearly six months into the new term of North Carolina’s Supreme Court.
 
Democracy hasn’t devolved into fascism as the doomsdayers warned. But the high court has sent down impactful decisions on hot political cases.
 
Proponents argue the court rectified egregious misapplications of the law handed down in the waning days of the Democratic majority last year. Detractors say it’s this court, not the last one, that’s being political.
 
We’ll dive into what’s happened so far and what to watch for next.
 
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First, a recap of the court’s ideological shifts in recent years.
 
Republicans held a Supreme Court majority for 18 years until 2016. That election initiated a series of tinkering and shenanigans that, together with a less favorable electoral environment, gave Democrats a massive court majority just two years later.
 
In 2015, legislators changed some of the laws involving judicial elections. Democrats alleged the maneuvering was an effort to help Justice Bob Edmunds (R) win in 2016 and maintain the Republicans’ 4-3 majority. Ultimately, Republicans lost a suit over the changes (including a 3-3 split decision on the Supreme Court, with Edmunds of course recusing), and Edmunds lost his seat to Michael Morgan (D).
 
Democrats, then, enjoyed a 4-3 majority after the 2016 election.
 
In 2018, Republicans had to defend incumbent Justice Barbara Jackson (R) to avoid giving Democrats a 5-2 advantage. The year prior, the legislature changed the law governing primaries in judicial elections. Some speculated the move was an attempt to invite two Democrats into the race, splitting the vote and ensuring a win for Jackson.
 
But that didn’t happen. The Democratic Party lined up behind Anita Earls, who made her name suing the Republican-led General Assembly as leader of the left-wing Southern Coalition for Social Justice. Democrats took advantage of the law change to undermine Republican chances of victory: Attorney Chris Anglin, a lifelong Democrat, switched parties and filed to run as a Republican, splitting the vote with Jackson.
 
Earls won the race even though the two “Republicans” won more total votes. Earls’s victory gave Democrats a 5-2 advantage.
 
Then, in 2019, Chief Justice Mark Martin shocked the political world and infuriated Republicans by resigning his seat, which empowered Gov. Roy Cooper to appoint a Democratic replacement. He elevated Associate Justice Cheri Beasley (D) to the Chief Justice vacancy, and appointed Mark Davis (D) to fill Beasley’s Associate Justice spot, giving Democrats a 6-1 majority.
 
The Election Day results in 2020 saw Republicans cut into that advantage with victories by Phil Berger, Jr. and Tamara Barringer. Paul Newby (R), an associate justice who challenged Chief Justice Cheri Beasley (D) for the top role, was in a virtual tie on Election Day. After a recount, he edged Beasley by 401 votes out of more than five million cast – a 0.007% difference.
 
Democrats, then, held a 4-3 majority into 2022. That year, Republicans swept statewide contests, including judicial races. Victories by Republicans Trey Allen and Richard Dietz gave Republicans a 5-2 majority. Barring any unforeseen events, Republicans will hold a majority on the high court through at least 2028.
 
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Just weeks into the new court’s term this year, they reconsidered a slew of highly controversial, politically charged cases: voter ID, felon voting, and redistricting.
 
The outgoing Democratic majority had decided two of those three cases – voter ID and felon voting – in the final weeks of its term, after the election made clear a new majority would take over. The late decisions meant the defendants in those cases – legislative leaders – would still be within the allowable window to ask the high court to reconsider its own decisions when the new justices were seated. And that’s exactly what they did.
 
On April 28, the court handed down its decisions: The state’s voter ID law, mired in years of litigation after voters amended the Constitution to require photo voter ID, was constitutional, and convicted felons had to follow a law enacted in the 1970s that outlined the path to restore their voting rights.
 
Writing for the majority, Justice Phil Berger, Jr., said, “Even in the most divisive cases, we reassure that public that our state’s courts follow the law, not the political winds of the day.”
 
On the same day, the court also handed down a redistricting decision. In another 5-2 opinion, the justices effectively removed the judiciary from partisan gerrymandering claims, returning to the position the courts held for almost the entirety of the state’s existence.
 
Writing for the majority, Chief Justice Paul Newby said, “Courts are not designed to be thrust into the midst of various political disputes. Such engagement in policy issues forces courts to take sides in political battles and undermines public trust and confidence in the judiciary. Choosing political winners and losers creates a perception that courts are another political branch.”
 
In addition to those cases, the new Supreme Court also reversed a ruling from last year in the long-running Leandro case. In 2022, the Democratic-majority court upheld a lower court decision to order executive branch officials to withdraw hundreds of millions of dollars from the state treasury, over the objections of the General Assembly, and give that funding to various agencies as outlined by a California consultant’s report.
 
The new majority allowed the case continue, but blocked the order to executive branch officials to withdraw funding.
 
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It’s been an impactful first five months for the high court’s new majority. What comes next? The General Assembly is advancing a bill to reconfigure appointments to several boards and commissions. The legislation, if it becomes law, may trigger litigation and an opportunity for the Supreme Court to revisit McCrory v. Berger. House Speaker Tim Moore implied as much in public remarks last month.
 
Given the makeup of the court, though, left-leaning litigants may be less inclined to seek policy remedies through the judiciary in the way they did from 2018 to 2022.
 
Looking ahead to 2024, Justice Michael Morgan announced he will not seek reelection. There has been speculation that Justice Earls’s successor at the Southern Coalition for Social Justice, Allison Riggs, may run for the seat and join her former partner on the bench. Cooper appointed Riggs to the Court of Appeals last year.
 
For several years, the Supreme Court served as a policymaking body of last resort for left-leaning organizations to achieve outcomes they couldn’t win at the General Assembly. It’s clear that the Supreme Court has returned policymaking deference to the legislature – a state of affairs that bodes well for the conservative agenda, and poorly for the progressive agenda.