Courts should judge, not legislate
Published August 8, 2019
By John Hood
When conservatives argue for judicial restraint, most don’t mean that the judicial branch ought to be supine and subservient to lawmakers and executives. They favor judicial review to strike down unconstitutional laws, defend essential freedoms, and deter abuses of power by the other branches.
But as is evident in a recent North Carolina redistricting case, and may gain even more prominence as a longstanding school-funding case returns to the political stage, conservatives and progressives disagree about the proper role of judges in fashioning public policy. To make a very long story short, conservatives envision judges settling questions of whether, who, and why. Progressives envision judges dictating what, where, and how.
A panel of three Superior Court judges will soon issue the initial ruling in the redistricting case, in which the nonprofit Common Cause and the North Carolina Democratic Party are challenging Republican-drawn legislative districts as unconstitutionally partisan gerrymanders.
The North Carolina constitution doesn’t actually say anything about partisan gerrymandering. The plaintiffs argue, however, that general clauses protecting the right to “free elections” and to “equal protection of the laws” imply a protection for voters and candidates against being drawn into a district where their partisan preferences are unlikely to prevail.
I would very much like our state constitution to contain provisions limiting partisan gerrymandering — indeed, I’ve advocated that for nearly three decades — but I believe they must be placed there by amendment, by popular referendum rather than judicial fiat. That doesn’t mean I think judges have no role in supervising redistricting. I supported a previous case, Stephenson v. Bartlett, in which plaintiffs successfully struck down an egregious gerrymander of North Carolina’s legislative districts. But in that case, the maps violated a specific constitutional provision requiring districts to respect county lines. To the extent consistent with federal law, that provision had to be enforced. Judicial intervention was the only remedy.
Even in that case, though, the General Assembly was given the opportunity to fix the districts it had unconstitutionally contorted. It failed to do so. Only then did a judge have a consultant draw maps, and only for a single election. The plaintiffs in Common Cause v. Lewis are seeking a more-expansive outcome.
Similarly, progressive activists have long been dissatisfied with the outcome of the Leandro school-finance case, which began in 1994 when five rural districts filed a lawsuit arguing that their communities lacked the resources to finance the level of public education required by the state constitution. Other districts intervened. The North Carolina Supreme Court issued two successive decisions in the case, finding that the constitution did indeed establish a civil right to the opportunity for a “sound, basic education” and that the state had not discharged its responsibility to provide it.
But the judicial branch never gave the plaintiffs what they really wanted: a court order requiring the General Assembly to increase state appropriations by such a large amount that tax increases would be required. The state judges and justices involved concluded that dictating education and fiscal policy in that way would violate the constitutional separation of powers. And they were right.
That was then. This is now. With Roy Cooper as governor, Josh Stein as attorney general, and a left-leaning state supreme court, some progressives now believe they can engineer the equivalent of a collusive settlement. They hope the judge now overseeing Leandro, David Lee, will use an outside consultant’s report as the basis of a court order to increase state funding substantially and possibly also to regulate charter schools into irrelevancy or nonexistence. They assume Cooper and Stein will be happy to go along for the ride.
To say such a ride would be bumpy would be a gross understatement. The result would be a constitutional crisis and its perpetrators would face grave political consequences. Perhaps cooler heads will prevail. I hope so.
Judges shouldn’t be afraid to strike down unconstitutional laws. But they aren’t policymakers. When they act that way, they subvert constitutional government rather than defend it.