Guest Viewpoint: Why NC’s Courts Are Becoming More Partisan

December 12, 2021

It isn’t your imagination. Nor is it an accident.

Guest viewpoint from Billy Corriher, author of “Usurpers: How Voters Stopped the GOP Takeover of North Carolina’s Courts”

The North Carolina Supreme Court is facing accusations of partisanship. This time, it’s because the Court pushed back the state’s 2022 primary to give judges time to determine if the recently redrawn election districts are so gerrymandered that they’re unconstitutional. If history is any indication, the GOP will almost certainly lash out at any judges who push back against the most recent gerrymander. Some Republicans have suggested that their legislators could even impeach judges who rule against them in some cases. Due to procedural rules, even though Republicans lack the necessary two-thirds of the State Senate to remove justices, a simple vote to impeach could leave the impeached justices suspended and off the bench through the 2022 election, when Republicans have a chance of winning control of the court.

The 2022 high court race will be pivotal for North Carolina’s democracy. Candidates will be running expensive, partisan campaigns — an election system established over the past ten years by the legislature. And Republican candidates could again run as a slate with a common platform, a new trend that rejects traditional norms around judicial politicking. 

Republican appellate Judge April Wood, who filed to run for the high court before filing was postponed, has been criticized for a campaign appearance with Lt. Gov. Mark Robinson in which he compared LGBTQ people to “maggots” and called them inferior. Wood describes herself as a “Constitutional Conservative.” Judge Richard Dietz, another Republican on the Court of Appeals, is also running for the high court. He announced his intent last spring to campaign with other GOP candidates on another conservative slate. 

In 2020, Republicans swept appellate court races, resulting in a Court of Appeals with a 10-5 GOP majority. Chief Justice Paul Newby, who very narrowly defeated Cheri Beasley, had recruited former Republican legislator Tamara Barringer and Phil Berger Jr., son of Republican Senate Leader Phil Berger, the most powerful Republican politician in the state, to run with him. It was only the second election since the legislature made high court races partisan again. Appellate court candidates raised well over $9 million, with much of the money coming from lawyers, lobbyists, and corporate interests.

The Legislature Reshapes Judicial Elections

For a decade, candidates for North Carolina’s appellate courts could fund their campaigns through a public financing program, instead of relying on wealthy campaign donors. The program had bipartisan support among judges, and it fostered diversity on the bench. But Republican lawmakers repealed that program in 2013, as part of the “monster” voter suppression bill that was partly struck down for targeting Black voters “with almost surgical precision.” 

Since then, judicial candidates have been forced to campaign like traditional politicians – that is, left to rely on large donations from law firms and businesses, many of which have a stake in the court’s rulings. The legislature even increased the limit for judicial campaign contributions. 

That was just the beginning. In 2015, with the possibility of voters choosing a liberal high court majority in the following year’s election, Republican legislators passed a bill that would’ve basically canceled the election and ensured a continued conservative majority for two more years. The bill was struck down, and voters did indeed choose a new liberal majority in November 2016. 

Immediately following the 2016 election, Republicans considered packing the court to effectively nullify the election’s partisan results. Conservatives floated the idea of passing a bill that would’ve allowed the lame-duck Republican governor to fill two new seats, creating a conservative majority. Citizens responded with massive protests.

While Republicans were not successful in packing the court that December, the attacks on the courts escalated over the next two years. Here’s how I described it in my book:

North Carolina became the first state in almost 100 years to adopt partisan judicial elections. Rep. Marcia Morey, a Democrat who served for decades as a judge, said in the New York Times, “I feel like we’re taking off the black robes and we’re putting on red and blue robes… and does that really serve the interests of justice?”
In one of their more breathtaking power grabs, legislators introduced a constitutional amendment to shorten every judge’s term to just two years. Every judge would be on the ballot in every election. North Carolina judges would have had the shortest terms in the nation, forcing them into the same never-ending campaign that modern legislators face.

Most of the power grabs were halted in court, in the legislature, or at the ballot box. But the legislature’s most fundamental changes to appellate court elections — a return to partisan races and the end of public financing — remain in place today. Judicial candidates are still running in the partisan, high-dollar system that the legislature set up.

The GOP’s Judicial Platform

In theory, judges are supposed to approach each case with a blank slate, not with a political agenda in mind. But in 2020, three Republican candidates ran on the same political platform. And their platform happened to align with the legislature’s agenda. 

After being recruited by Newby, Phil Berger Jr. said the three high court candidates “all have on the same jersey. We have the same judicial philosophy. And we’re all conservative!” Berger Jr. had also supported the move to partisan judicial elections, arguing that party labels tell voters what judges “believe.” In 2004, Newby said that identifying him with the Republican Party’s platform was a “fair means” for voters to determine his “judicial philosophy.

The members of Newby’s team have expressed support for the Republican legislature’s extreme agenda. Berger Sr. and Newby supported the 2013 repeal of the Racial Justice Act, a law that sought to address demonstrable racial discrimination in death penalty trials. Both the justices are former prosecutors, and on the campaign trail, they dismissed any claims of racial discrimination in the criminal justice system. Berger called the idea “just absurd.” And Newby flatly denied ever witnessing racial bias in his four decades as a prosecutor and judge – a truly breathtaking statement for anyone familiar with North Carolina’s judicial system.

Several years ago, Newby wrote the court’s decisions to uphold election districts that were later struck down by federal courts for discriminating against Black voters. And when she was a State Senator, now-Justice Tamara Barringer voted for a bill in 2018 that gerrymandered Black judges in Charlotte. 

The GOP’s 2020 judicial slate was funded by many of the same big corporations and lobbyists as Republican legislators’ campaigns were. And these campaign donors expect that the justices will keep ruling in favor of corporate interests and against workers and consumers.

With control of the court at stake, the 2022 race will likely see even more campaign contributions and independent spending, backing candidates of both parties. Republicans will pull out all the stops, because a GOP-led court could rubber stamp the legislature’s voter suppression and gerrymandering. North Carolina’s democracy is on the line.

Billy Corriher is the author of “Usurpers: How Voters Stopped the GOP Takeover of North Carolina’s Courts.” He is an expert on North Carolina’s court system and a frequent commentator on judicial affairs.

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