August 12, 2023
Republicans achieved their long-sought majority on the North Carolina Supreme Court after the last midterm elections. The results since have been sobering for democracy, majority rule and what is supposed to be a merits-based legal system.
Right-wing takeover
After the 2016 elections, North Carolina Supreme Court races were made partisan. This proved to be a great opportunity for Republicans to seize the moment they had been waiting for. While the people of North Carolina had previously voted for liberal-leaning justices, the voters, once being exposed to the toxin of partisanship, elected a more conservative court, eventually flipping it in 2022 in a major victory.
This came after the North Carolina Supreme Court had blocked an extreme partisan gerrymander of the state’s congressional maps in a state notorious for allowing elected officials to choose their voters rather than the other way around. The high court had also blocked a voter identification law from going into effect and is expected to soon hear a case involving the state’s new 12-week abortion ban.
The strategy used to flip the court was devised by now-Chief Justice Paul Newby, who appealed to Republicans with his blatant partisanship and clear desire to build a bench full of Republicans that he could lead.
North Carolina as a whole is getting ever more purple, a phenomenon that can be observed from the fact that Democrats and Republicans occupy an equal number of seats in the state’s U.S. House delegation, while the state’s statewide elected positions contain both Democrats and Republicans.
However, the state’s legislature contains Republican supermajorities and now, with a Republican supreme court, has reduced Democratic Gov. Roy Cooper to a shadow of the power his office holds.
Reversals
The new majority on the North Carolina Supreme Court immediately threw its legitimacy into question with several almost laughably rapid reversals of decisions made by the more enlightened court prior to the election.
These reversals now make it possible for the state’s legislature to gerrymander the congressional maps, going from the even split to a 12-2 Republican supermajority. This is a defiance of the will of the voters, who were just five points apart in the popular U.S. House vote last fall. In a House with just a five-seat majority, the gerrymandering of this many seats could, all else remaining equal, hand Republicans the House and, if they win the Senate and White House, unified control of the federal government.
It took only 14 months for the court to seesaw between protecting voters and allowing gerrymandering to take place – less than six months after the court flipped.
Additionally, the court completed a u-turn on voting rights, just five months after the court had previously struck down a highly suppressive voter identification law. In another ruling, the high court struck down the voting rights of 56,000 returning citizens, overturning the ruling of a lower court, made less than a year before being reversed.
Presently, even more extreme voter suppression laws are in the works, setting the state for more partisan control of elections and lowering the options for voters who want to vote early or with absentee ballots. The North Carolina Supreme Court will likely greenlight these restrictions, even though it would have blocked them just months ago.
“[The] North Carolina State Supreme Court needs to do its job and be willing to objectively hear challenges that may come its way regarding election law and redistricting plans. With the U.S. Supreme Court’s emphatic rejection of Moore v Harper, our hope is our state supreme court heeds the message – they have an important role to play in deciding the constitutionality of any laws impacting our democracy,” said Common Cause North Carolina Executive Director Bob Phillips, whose organization strives to protect and expand upon the foundational principles of American representative democracy.
Unfortunately, the court ignoring the calls of those like Mr. Phillips is part of a broader pattern to rewrite the law from the bench and serve political interests, rather than hearing and deciding cases based on the merits. On one day, the new conservative majority granted as many rehearings in various cases as the court had granted in 20 years.
“It’s pretty galling that they’re even doing this considering the crisis of confidence that’s before the United States Supreme Court, and for them just to continue that pattern of rubber stamping these conservative policies is really harmful to legitimacy of the court,” said Rachel Bracken, a regional state courts manager with the Alliance for Justice, a group that encourages courts to be composed of those who reflect the people.
The decision which will infuriate and mobilize the most North Carolinians has yet to come. When the supermajority in the state’s legislature chose to override the governor’s veto of the 12-week abortion ban, they were instantly hit with lawsuits. Those will certainly go to the state’s supreme court for final review. The court will almost certainly continue its abject abdication of its duties and will rule the abortion ban constitutional in a decision devoid of any factual or legal basis.
Since the overturning of Roe v. Wade precluded the federal courts from playing any role in the protection (but, of course, not the restriction) of abortion rights, the North Carolina Supreme Court is all but certain to be the final decision maker on that case.
Once they find out what is happening, the people of North Carolina are not in favor of their new court majority.
“We even put out a video ad outlining the egregious decisions and egregious moves that [the high court] did. People were frustrated and they were shocked that this was even allowed to happen. It’s critical that we need to get this education out,” said Ms. Bracken.
Taking back the court
In a bit of a paradox, the moves made by the court will eventually result in a liberal majority. It will probably take over a decade of planning, mobilizing and waiting for terms to expire, but the justices who are causing such an uproar today will find themselves to be members of the general public in the future.
After all, these decisions are made by members of a party firmly in the minority, whose beliefs are mainly to put down those who pose a threat to their power.
A similar combination of popular anger and mobilization translating into action occurred in Wisconsin, where a 15-year Republican majority was flipped Democratic in a grinding election by election strategy, even incorporating a few setbacks. North Carolina can well see a similar pattern, especially as demographic changes in the state will also favor Democrats.
Minority rule, however institutionally entrenched, can ultimately be overcome by a determined majority.
The Law and Justice Building, home to the North Carolina Supreme Court. Indy beetle / Public Domain
By Charles Horowitz
Policy Reform Now 
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