North Carolina’s utterly lawless Supreme Court

(Editor's note: This article first appeared in The News and Observer April 22, 2026)

It was my sad fortune, recently, to read the N.C. Supreme Court’s tedious and hypocritical opinion in Hoke County Board of Education v. State – the historic school funding case. It was almost enough to make me wish I’d gone to dental school. I think Chief Justice Newby decided that if he wrote over 100 excruciating pages on what the dissenting justices accurately described as “a hyper technicality that (was) not a lawful ground to dismiss (the proceedings) and was not argued by any party to the appeal” he could at least be assured that no reader could bear to finish it. Here, he may have guessed right.

Newby and three Republican colleagues concluded that many years and judicial rulings earlier, “a proper facial challenge pleading was needed” but not made. Accordingly, “any order issued after 24 July 2017 was without subject matter jurisdiction and was void ab initio.” (The Latin makes it sound less dishonest.) Republican Justice Richard Dietz refused to join the subterfuge – demonstrating himself, yet again, to be an actual judge rather than a corrupted partisan. Dietz explained: “Our state court system certainly has the judicial power to entertain the claims asserted here.” No “defect in subject matter jurisdiction” deprives the court of authority. Now, to be candid, every lawyer, every politician, and every activist in North Carolina knew what the outcome was going to be in the Hoke County case. The state’s poor kids were going to lose; their constitutional right to enjoy a “general and uniform system of free public schools wherein equal opportunities shall be provided for all students” would be sacrificed; and the Republican General Assembly would be allowed to unabashedly violate the clear textual mandates of our state’s defining charter.

What we didn’t know was how, specifically, the interment would occur. Perhaps the court would rule, despite decades of decisions to the contrary, that the case was a mere “political question.” Maybe, as they frequently do, they’d explain the constitution means something other than what it plainly states. Or maybe, after sitting on the case for 771 days, the judges would just declare, as my mother-in-law used to put it: “We’re not telling.” Of course, by deciding the case on a made-up pleading technicality, they could say everything by saying nothing. “We’ve put an end to Leandro and you’d have to be an idiot to bring anything like it back to us again,” they effectively declared. Still, there is something exceedingly rich about this particular Supreme Court turning to a procedural nicety – even a fraudulently constructed one. In its short tenure, our new Republican Supreme Court has shown a remarkable, even singular, penchant for trashing procedural rules and traditional standards of judicial decision-making. To briefly illustrate. Upon taking the majority in 2023, Newby’s crew cast aside over 200 years of precedent in the use of the re-hearing mechanism to unleash extreme partisan gerrymandering. Later, the justices wildly manipulated their interventions and abeyances to assure that Phil Berger could successfully achieve his long-sought political takeover of the State Board of Elections. Our four Republican partisans also stunned the state and the nation by completely casting aside procedural, substantive and constitutional rules in order to boldly try to steal the Allison Riggs-Jefferson Griffin election – not even pretending to be lawyers, much less judges. And, of course, in Hoke County itself, they departed from practices of appellate review to hurriedly intervene in the case and then waited over two years to deliver a decision – acting like a calculating political tribunal rather than a court.

The pattern is more than telling. Our high court will demolish procedural norms to serve Republican goals in gerrymandering, in voting rights cases, and even in the attempted theft of individual elections. When it comes to meaningful educational opportunity for poor kids in the Tar Heel State, they create new and artificial barriers to access. The North Carolina Supreme Court — working its magic to help ensure that we have the worst funded public school system in America.

Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.