Disorder in the Court

As proceedings began at the NC Supreme Court one morning this month, Chief Justice Paul Newby did little to hide his displeasure with arguments from lawyers opposed to voting maps drawn by Republican lawmakers.

Newby, who was narrowly elected to the court’s highest job in 2020, was unusually aggressive. Speaking via videoconference, with the stately, wood-paneled courtroom as his backdrop, he interrupted the lawyers 21 times in the first 28 minutes.

So it was no surprise that two days later, when a majority of the court said the maps were unconstitutional, Newby dissented. But what was jarring was the chief justice’s attack on the motives of the four Democratic justices on the seven-member court, with Newby publicly making claims of partisanship against his own colleagues.

“A majority of this Court … tosses judicial restraint aside, seizing the opportunity to advance its agenda,” Newby wrote, adding that the majority was “seeking to hide its partisan bias.”

Newby’s words, and previous comments he has made about the court’s Democratic justices, are a stark contrast to the approach taken by John Roberts, chief justice of the U.S. Supreme Court. Roberts, who was appointed by a Republican president, has worked for years to preserve the appearance of the court’s independence by staunchly guarding it from attacks from both the left and the right.

In November 2018, Roberts defended federal judges from criticism by then-President Donald Trump. “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges,” Roberts said. “That independent judiciary is something we should all be thankful for.”

There have been no similar, steadying public words from Newby. His comments about his fellow justices put a sharp focus on what court insiders, lawyers and politicians consider to be the increasingly partisan nature of North Carolina’s highest court.

Facing what could be its most momentous docket in a generation, the court is under increasing scrutiny. Though the justices often come to unanimous decisions on less controversial matters, cases of keen interest often lead to accusations that the court is no longer an independent branch of government.

“I think the public sees it more and more as a third political branch,” former state Supreme Court Justice Bob Orr, who until recently was a Republican, told The Assembly. “I think that’s really, really unfortunate for the institution.”

When the high court issued its redistricting ruling on Feb. 4, Republican legislators, upset with the order, focused on the party affiliation of the four Democratic justices. “The majority opinion is not based in law, precedent, or the history of this state, but rather the political whims of four out of seven justices,” said House Speaker Tim Moore, a Cleveland County Republican.

Democrats praised the court’s decision. “A healthy democracy requires free elections and the NC Supreme Court is right to order a redraw of unconstitutionally gerrymandered districts,” Gov. Roy Cooper said in a statement.

Two of the court’s seats are up for election this year, meaning major cases will be heard amid the backdrop of partisan campaigns, with the court’s future direction in play. Republicans in the General Assembly made Supreme Court elections partisan in 2016 over objections from Democrats, who warned that it would make the justices more political.

In addition to the gerrymandering case, the court will weigh in on referendums to change the state constitution to include a voter ID requirement and income tax caps. It could also review whether lawmakers have adequately funded public schools, and if not, what role the courts can play in ensuring all children are provided the “sound, basic education” promised in the state constitution.

The justices who will render judgment on those cases include the Republican son of the state Senate’s most powerful member; a former GOP lawmaker who voted for issues now before the court; and a Democratic former civil rights lawyer who once represented voting-rights advocates.

They all face questions about their ability to rule free from bias toward one party or another. Recently, there have been calls for recusals of the justices, and threats of impeachment of Democratic justices from the former executive director of the state Republican party.

As the court fends off attacks of partisanship, it must also struggle to address hot-button issues and offer interpretations of the state constitution that will gain broad acceptance in a politically saturated environment. Failing that, its very credibility could be at stake.

Burley Mitchell, a Democrat who was North Carolina’s chief justice from 1995 to 1999, told The Assembly, “The public needs confidence that it can get some sense of justice.”

Newby is a former prosecutor who as chief justice sets the tone for the court and serves as the head of the state’s judicial branch. The 66-year-old from Randolph County won the top court position in 2020 by the slimmest margin in state history—401 votes out of more than 5 million cast.

He defeated Cheri Beasley, the Democrat who Gov. Cooper had appointed to be chief justice in March 2019 after Mark Martin, her predecessor, resigned to become dean of the Regent University law school.

It was no secret that Newby and Republicans felt slighted when Cooper tapped Beasley for the court’s top job, making her the state’s first Black female chief justice, instead of naming Newby, who was (and still is) the senior member.

Though public debate between Newby and Beasley was civil during the run-up to election day, he did not shy away from using partisan language on the campaign trail. His political ads and campaign speeches have drawn scrutiny over the years, especially a Wake County event in 2019 where audio obtained by WRAL revealed Newby describing the judiciary as the “most dangerous branch of government.”

Newby, then the lone Republican on the court, compared his six Democratic colleagues to Alexandria Ocasio-Cortez, the congresswoman from New York who calls herself a democratic socialist.

“Imagine seven AOCs on the state Supreme Court,” Newby told the Republican crowd. “Well, folks, we got six,” he said to laughs. “It’s six to one … I lose sleep at night thinking what would it be like if we had no one to hold accountable those that want to cause social change through our judicial branch.”

Newby’s comments about his colleagues were an unusual breach of judicial protocol. Former justice Patricia Timmons-Goodson, a Democrat and the first Black woman to serve on the state Supreme Court, publicly called out Newby and said he “stepped over the line.”

“No judicial candidate should cast judicial colleagues in a negative light,” she wrote in The News & Observer. “Newby’s comments challenge the legitimacy of the Supreme Court of North Carolina.”

Now Newby, who declined to be interviewed for this article and did not provide answers to written questions, is the leader of a court that includes several justices he harshly and publicly criticized. The four Democrats on the court declined comment for this article.

Newby also has repeated a common refrain from Republicans in the General Assembly after judges rule against them on high-profile political issues, calling them judicial activists or legislators in robes trying to write laws rather than interpret them.

In an interview published in Attorney At Law magazine in March 2021, Newby described himself as a “common-sense constitutional conservative.”

“That means I honor separation of powers …There are different tasks our state Constitution assigns to each branch of government, and it’s not my job as a justice to legislate. It’s my job to fairly and impartially apply the law to the facts of each case. If I don’t like the law, I don’t change it. If I don’t like a constitutional provision, I don’t change it. I’m not a legislator in a black robe.”

The clock on the mantel above the fireplace in Newby’s Raleigh home showed the minute hand had barely moved past midnight on Jan. 1, 2021, when Andrew Heath, a Superior Court judge and rising state Republican, administered the oath of office to the newly elected chief.

The gathering was small. COVID-19 was terrorizing the state and country. Newby’s wife, Macon, held the Bible as the new chief justice raised his right hand in response to Heath. All three wore masks.

Heath, who was appointed to the bench by Gov. McCrory in the waning weeks of his administration, wore his black robe for the occasion. Heath had served as McCrory’s budget director and also was appointed to lead the Industrial Commission by the former governor.

Although the chief justice gets only one vote among seven as the justices decide cases, the office comes with great influence over how the state’s court system and its policies are administered.

Chief justices set the calendar for when cases are heard. They appoint judges to sit on three-judge panels that weigh challenges to the constitutionality of laws created by the General Assembly and the voting districts they draw every decade.

In North Carolina, chief justices have influence over who leads the administrative office and the employees within it, as well as personnel in the courthouses across the state—the judges, magistrates, clerks and others, some 6,400 people in all.

Not long after the small ceremony in Newby’s house, the new chief justice named Heath director of the state Administrative Office of the Courts–a plum appointment overseeing the state’s court system.

On his first day, Heath began a shakeup in the ranks, bringing in Republicans to fill key posts. Though the employees who lost their jobs served at will, meaning they were not afforded protections and administrative hearing processes that most state workers have, the swiftness of their terminations startled some observers of the courts.

Republicans, who won all the statewide judicial elections in 2020, pushed back against criticism, saying Newby and Heath were within their rights and that Democrats were simply upset by Republican victories at the ballot box.

In July, Newby appointed Donald van der Vaart, McCrory’s former secretary of the N.C. Department of Environmental Quality and a member of the Environmental Protection Agency’s Scientific Advisory Board in the Trump administration, as the chief administrative law judge and director of the Office of Administrative Hearings.

Many Democrats saw that as further evidence of Newby’s rewarding partisan Republicans with influential posts. The previous top administrative law judge, Democrat Julian Mann III, served eight terms and was seen as nonpartisan; he had been reappointed by Democratic and Republican justices.

Another of Newby’s appointees is running for a seat on the Supreme Court. Trey Allen, one of two Republicans currently campaigning to unseat Justice Ervin, a Democrat, was appointed chief counsel even as he was mapping out his run for office. The appointment turned some heads in the court system because judges and administrators rely on the system’s lawyer for nonpartisan advice.

Allen was one of Newby’s law clerks during his first term on the bench. “He has encouraged me over the years to think about running for the court,” Allen told The North State Journal in July.

While introducing his boss at the NC Faith and Freedom Coalition’s conference in October, Allen said, “I don’t think it’s any exaggeration to say that Paul Newby has been a gold standard of conservative judges in the state of North Carolina.”

In mid-December 2016, the General Assembly met for what was supposed to be a special session to allocate state emergency funds to western counties hit hard by a raging wildfire and to eastern counties where Hurricane Matthew had caused massive damage.

While those issues were quickly addressed with bipartisan support, a political storm blew up when Republicans also proposed changing how the state Court of Appeals and state Supreme Court were elected.

Mike Morgan, a Superior Court judge from Wake County and a registered Democrat, had defeated Bob Edmunds, an associate Supreme Court justice and registered Republican, only five weeks earlier in an election that flipped the partisan balance on the state’s highest court. Neither of the candidate’s party affiliations were shown on the ballot, as had been the practice since 2002.

As throngs of protesters gathered in the gallery and in the atrium outside the state House chamber on Dec. 16, 2016, Republican lawmakers argued to shift back to partisan judicial races. They rejected the notion that such a change was a response to Morgan’s victory.

“What this does, ladies and gentleman, is it simply allows the voters of North Carolina to simply make an informed choice,” Rep. Bert Jones, a Republican from Rockingham County, said during debate.

Robert Reives, a Democrat representing Lee and Chatham counties at the time, rose to protest the bill. He pushed back against the notion that since judicial elections had been partisan before, when Democrats held majorities in the General Assembly, that it now was OK for Republicans to follow suit. Judges, Reives stressed, should be impartial.

“I will always feel that judges and people on boards of education that are looking out for our children should be non-partisan,” said Reives, a lawyer. “I should feel they have no pressure from the machines that get some of us up here and the machines that run some of our parties. They should be out there on their own.”

The bill passed along party lines in the House, then the following day in the Senate. Gov. Pat McCrory, a Republican who had just been defeated for reelection, quickly signed the bill into law with only weeks left in his term.

Every year since then, Rep. Joe John, a Wake County Democrat and a former judge, has introduced a bill to reenact nonpartisan elections and to reestablish public financing for judicial elections. He’s never succeeded.

“The courts, the judges, do not represent a constituency,” John said. “It is not a legislative body. It is meant to be a fair, non-partisan body.”

As Supreme Court races in North Carolina have become more partisan, they’ve also become more expensive, a political arms race that shows no signs of diminishing.

In 2004, lawmakers created a program through which judicial candidates for the state Court of Appeals and Supreme Court could get public financing for their campaigns if they agreed to limit the total spent. That program was heralded by many as a way to protect the courts from becoming beholden to the lawyers and others who funded campaigns.

Then in 2010, the U.S. Supreme Court’s Citizens United ruling allowed corporations and other outside spending groups to infuse campaigns with unlimited funds.

Two years later, in a race in which Newby defeated Sam J. Ervin in his first attempt to win a Supreme Court seat, both candidates accepted public financing for their campaigns, but outside spending groups put more than $2.8 million into the races, according to an analysis by Facing South, an online publication of the Institute for Southern Studies, a liberal nonprofit based in Durham.

About 90% went to Newby, including from groups with ties to the Republican State Leadership Committee, based in Washington.

After Republicans took over the General Assembly, they did away with the public financing program. Now North Carolina’s Supreme Court races have become some of the most expensive in the country, according to a new report from the nonprofit Brennan Center for Justice.

North Carolina was the fourth-highest of 21 states in spending on state supreme court races in 2019 and 2020, with more than $10.5 million spent on the chief justice race. Some $3.4 million, the study found, came from outside special interest groups.

The spending on judicial races, the report said, poses “a serious threat to the appearance and reality of justice across the country … More people and more interest groups—many with deep pockets—will almost certainly be paying close attention to who sits on these courts and how they reach the bench.”

Douglas Keith, a lawyer and one of the authors of the report, told The Assembly, “We have to see these efforts around these courts, not just the spending, but the manipulation by state legislatures, as attacks on democracy.”

State supreme courts increasingly find themselves dealing with incendiary issues partly because the U.S. Supreme Court has “kicked the can down the road” to decide some major questions, said Tom Metzloff, a Duke University law professor who directs the American Law project, which examines pivotal U.S. Supreme Court cases.

It’s up to these state courts to figure out the limits of partisan influence in election map drawing. They weighed in on challenges to the 2020 election results, as well as the emergency powers of governors in the COVID-19 pandemic. They soon could face tests of abortion laws if the country’s highest court overturns or severely weakens Roe v. Wade.

“What we now realize is the Supreme Court of North Carolina is going to be in charge of some of these tests of democracy,” Metzloff said. “It will be an important test.”

Orr, the former justice whose resignation from the bench led to Newby’s first election to the Supreme Court, says confidence in the court has steadily eroded since a controversial redistricting case in 2002—Stephenson v. Bartlett.

A Republican majority struck down voting districts drawn by a legislature controlled by Democrats. The court told lawmakers they had to make sure they complied with the federal Voting Rights Act, which prohibits racial discrimination in electoral maps, while also adhering to a provision in the state Constitution that says counties should not be divided.

Since then, Orr, who teaches a course at the UNC law school on the state constitution, has noted how many lawsuits challenge new politically-charged laws and election districts as violations of the state constitution.

“We have seen more and more hot-button cases ending up in the laps of the justices and that, for better or worse, increases the perception of partisanship in courts,” Orr said. “I’ll blame the media to a certain extent. The more you talk about the courts being partisan, the more the public perceives it to be.”

Kym Hunter is an attorney on the case challenging the validity of two constitutional amendments about voter ID and the cap on state income taxes, which was argued on Feb. 14. She says the justices can play a role in relieving the public of such perceptions by not participating in cases where they have a personal connection.

Hunter and other attorneys have asked for recusals by Justice Phil Berger Jr., a Republican whose father leads the state Senate as president pro tem and is one of the defendants in the case, and Justice Tamara Barringer, a Republican and former state lawmaker who voted on the legislation being challenged. Both justices declined to recuse themselves.

In the redistricting case, Republicans asked Justice Anita Earls to recuse herself for several reasons, including her previous association with the Southern Coalition for Social Justice, which served as counsel for plaintiffs in the case; Earls founded the non-profit organization in 2007, but left it to run for the court.

Republicans also cited her ties to Eric Holder, a former U.S. attorney general in the Obama administration leading the National Democratic Redistricting Committee. That group was not a party to the suit heard by the state Supreme Court, but it opposed the voting maps drawn by North Carolina Republicans and has supported those who fought them in court.

Holder endorsed Earls in her 2018 campaign for a supreme court seat, and the NDRC contributed $5,200 to her campaign. Republicans who asked for her recusal said the NDRC also contributed $250,000 to the state Democratic Party’s “coordinated judicial fund,” much of which was used to support Earls. She declined to recuse herself.

Republicans also asked Justice Ervin to recuse himself because he is running for re-election and they said any decisions he made about the maps could have an impact on his own electability. Ervin declined to recuse himself.

Those challenging the maps asked Justice Berger Jr. to recuse himself because his father is a named defendant, whose district is one of the ones being challenged. Berger Jr. declined to recuse himself.

“The Supreme Court doesn’t need to be in crisis,” Hunter said. “It has important cases before it. The court’s in a position to be a non-partisan branch that protects democracy.”

Politics was in full display as the gerrymandering case headed to the state Supreme Court.

Republicans in the legislature scrolled through Earls’ twitter account and sent out screenshots of old tweets, showing her involvement as a private attorney in previous redistricting cases and calling them “Impartial Anita’s Tweet of the Day.”

RepresentUs, a nonprofit whose mission is to get big money out of politics and protect voting rights, ran ads online and elsewhere urging the Supreme Court to overturn the maps.

Toward the end of the 90-minute virtual hearing on Feb. 2, Phil Strach, an attorney representing the Republican lawmakers who drew the maps, teed up an unprecedented line of debate. The case before the seven justices, he argued, was less of an indictment of his clients, but more evidence that the court, itself, was on trial.

“The mere possibility that this court may strike down the redistricting plans has already led some in the public to start treating the court like a legislature, not a court,” Strach said. “Some groups are literally running ads, lobbying this court to throw out the enacted districts …”

Justice Earls, who spent years opposite Strach in federal and state courtrooms before her election to the high bench in 2018, interrupted.

“Mr. Strach,” she challenged, “isn’t it our obligation to read the state constitution and give effect to its provisions, whatever the public may or may not think about that?”

Strach said that the court was obligated to interpret the law as it’s written. “It also has an obligation to protect the reputation of the court,” Strach said, “and it’s clear that because of even the existence of this case, people are already beginning to view the court as another partisan actor on another partisan stage, and this court has the ability to make sure that doesn’t happen.”

Rep. Pricey Harrison, a Democrat from Greensboro and a lawyer, is among those troubled by the increased perception that the courts have become overly partisan. The courts, she said, should be the firewall that prevents overreach by the legislative and executive branches.

“It’s got cracks in it,” Harrison said.

Roberts, the U.S. chief justice, issues an annual report in which he calls for independence for the federal judiciary. Harrison would like to see Newby take a similar approach. “That would be a great role for our chief justice,” she said.

Retired Supreme Court Justice Barbara Jackson, a Republican who served on the high court from 2010 to 2018 and eight years on the state Court of Appeals prior to that, spoke with WUNC’s Jeff Tiberii recently on his Politics Podcast about what’s happening to the state’s judiciary.

“What concerns me the most is politicization of the courts,” Jackson said. Of the three times she ran for a seat on the court, two of the races were nonpartisan. “Frankly, I liked that,” she said, acknowledging that adding the party label does give voters more information.

Jackson gave some insight into how the court operates—or perhaps how it used to operate.

“Realistically, none of us should be bringing politics to the courts,” she said. “Judges shouldn’t be super-legislators. Their function is quite different than that. It’s one of the reasons they engage in their proceedings confidentially, and have a fairly lively discourse about what’s going on, and oftentimes are able to reach a consensus resolution that way.

“This is a branch of government that is very contemplative, and does a lot of work behind the scenes, and a lot of trotting out of ideas, and I think those ideas can flourish better when they’re given the proper protection, you know, rather than having to answer every tweet, or every post on Facebook or whatever is going on out in the political arena.”