Judges not legislators: State Supreme Court’s legitimacy depends on continued respect for precedent

Published November 30, 2022

By Rob Schofield

Maybe the change was an inevitable byproduct of our charged and contentious era.

Maybe it was naïve to ever think that things were dramatically different in the past.

Whichever the case, one thing for sure in 2022 is that public perceptions of the American judiciary as a neutral dispenser of blind justice ain’t what they used to be. And indeed, those altered perceptions may reflect a new, sobering and thoroughly politicized reality.

As has been made painfully clear in an array of news stories and commentaries since Republicans swept several North Carolina appellate court races in the recent election, there is a widespread perception across the political spectrum that this development will lead to sudden and dramatic reversals in some very important areas of constitutional jurisprudence – maybe even with respect to some momentous rulings on which the ink is barely dry.

As veteran journalist and North Carolina Council of Churches commentator Steve Ford explained in an insightful column last week, one such high-profile case in the 28-year-old Leandro school funding case.

Just last month, after witnessing more than a quarter century of willful and maddening non-compliance from elected leaders with its 1997 ruling that the state’s public schoolchildren enjoy a constitutional right to a “sound basic education,” the state Supreme Court finally ordered the legislature to appropriate the funds necessary to provide it.

But as Ford detailed, Republican legislative leaders reject the notion that the court can enforce such an order and many observers suspect/fear that now that the GOP will soon enjoy a 5-2 majority on the court (a majority that includes the son of the Senate Republican Leader and a former member of the Senate GOP caucus), the new line-up will spur a “180” course reversal.

Here’s Ford:

"How such a reversal would come about is both unclear and problematic. One could assume an attempt to have the ruling enjoined from taking effect. But if a partisan or ideological flip in the makeup of our appellate courts is allowed to bring wholesale changes in how laws are applied, that can fuel the corrosive sense that the supposedly impartial courts have been politicized. Respect for precedent can be followed out the window, but disrespect does its own kind of harm.”

And the Leandro case is far from the only matter on which such a dramatic flipflop might conceivably be in the offing.

As Lynn Bonner of NC Policy Watch explained in a recent news story, the high court’s ruling that the General Assembly acted unlawfully when it placed a pair of constitutional amendments to mandate voter ID and cap the state income tax rate on the state ballot in 2018 (because its members were elected from unconstitutionally drawn electoral districts) continues draw conservative fire as it percolates through the courts.

And then there are a number of criminal justice rulings on which reform advocates fear the GOP “tough on crime” campaign mantra could very well give rise to reversals of hard-won progress.

As Kelan Lyons of NC Policy Watch reported last week, two in particular stand out: racial discrimination in jury selection and limits on the amount of time a child must spend incarcerated before they are eligible for parole.

The notion of high courts turning to the hard right as a result of political and electoral activism is hardly unique to North Carolina. Republicans have made such a shift a top national domestic policy goal for years – a shift on which the U.S. Supreme Court’s conservative majority put an exclamation mark earlier this year with its extraordinary and precedent-shattering decision to remove a fundamental constitutional right by reversing Roe vs. Wade.

That said, the Roe reversal at least took decades to lay the groundwork for and execute. And even with that, it’s a ruling that has dragged public respect for the nation’s highest court to new and striking depths. As Steve Ford observed, the idea that the North Carolina Supreme Court would simply delete important constitutional protections just a few months or years after they were first formally conferred would be a remarkably brazen and disturbing act.

The bottom line: While it won’t be surprising or even inappropriate if the recent electoral switch spurs a gradual ideological shift in the court’s approach to some issues, North Carolinians have a right to expect that the justices will act like justices – not legislators.

This means that, in keeping with centuries of judicial practice, the new court will respect established precedent and not undermine its own legitimacy by rushing to overrule recent court rulings, merely because some members of the court might have decided the cases differently had they been there when the rulings were handed down.

Fortunately, during their recent campaigns, both of the newly-elected Republican justices – Richard Dietz and Trey Allen – pledged to interpret and apply the law in a fair and neutral manner and not to bring a political agenda to their new positions.

All North Carolinians have a right to expect that they will live up to this pledge.