NC’s courts are under political assault. Where are the defenders? | Opinion

Democratic Gov. Roy Cooper won a court victory on Nov. 1 when a three-judge panel blocked the legislature’s attempt to strip his appointment powers regarding three state boards.

That’s part of the news. Here’s the other part: The win is partial, temporary and likely to be overturned by the Republican-dominated state Supreme Court despite a previous ruling protecting the governor’s appointment powers.

That’s the state of North Carolina’s judiciary, starting and ending with the state Supreme Court. To predict the outcome of a case, don’t look at its legal merits, look at the political parties involved.

North Carolina’s courts have become politicized at the behest of the Republican-controlled legislature and with the passive or overt cooperation of Republican judges and justices. What’s striking about the co-opting of a key check on legislative power is the legal community’s lack of protest. (With the notable exception of UNC law professor Gene Nichol.)

The N.C. Bar Association, law school deans, leaders of prominent law firms and retired judges have been largely silent about the hijacking of a branch of government that is supposed to put allegiance to the law above loyalty to a political party.

Duke Law School Professor James Coleman says the legal community should be speaking out – and loudly.

“Every law professor and every prominent lawyer in North Carolina ought to be screaming about what’s going on,” Coleman told me. “It’s how democracies are lost. It’s not through some violent revolution. It’s because people who are in a position to speak out about stuff remain silent and I think that’s what’s going on right now.”

Since gaining control of the state’s highest court in the 2022 election, Republican justices have reversed recent rulings on voter photo ID and partisan gerrymandering and now appear poised to alter the Leandro court ruling that orders the legislature to spend more on public schools.

Meanwhile, the legislature has gained more control over appointments to the Judicial Standards Commission, the panel that oversees judicial independence and ethics.

The lack of objection from the legal community is understandable. Lawyers are loath to get on the wrong side of judges. And law professors and deans at public universities worry that their objections could lead to budget cuts. Retired judges feel it’s not their role to criticize their successors.

And there’s a sense of futility. Republicans will hold a majority for the court until at least 2028. And the GOP has locked itself into legislative power through extreme gerrymandering.

Criticism from the legal community won’t change that, but it could create awareness among voters that judicial elections need their attention. In 2022 particularly, most voters did not appreciate the stakes involved in who controls the state Supreme Court.

Coleman said public criticism could curb the Republican-led court from acting like a Republican caucus.

“The U.S. Supreme Court, for example, is sensitive to people suggesting that they’ve lost credibility,” he said. “I don’t know that these people would be sensitive to that, but I think that’s what ought to happen. Folks who are respected ought to say this is political, not judicial.”

One who could lead the protest is Attorney General Josh Stein, now a candidate for the 2024 Democratic gubernatorial nomination. Stein has spoken out about the legislature diminishing other branches, but Coleman said he should focus directly on the politicization of the courts – and its judges.

“The attorney general is, in effect, our chief minister of justice,” Coleman said. “If he sees something that is going on that is undermining the rule of law, undermining the independence of the judiciary, I think he has an obligation to speak out. Period.”

Others should protest the distortion of the law to serve ideology. Lawyers take an oath to support, maintain and defend the state and federal constitutions. That defense is sorely needed now.

This story was originally published November 5, 2023 at 4:30 AM with the headline "NC’s courts are under political assault. Where are the defenders? | Opinion."