Good concepts or bad – experts say politicizing the courts in special session detrimental to judicial independence, public perception

Good concepts or bad – experts say politicizing the courts in special session detrimental to judicial independence, public perception

Court systems are complicated, and legislation like Senate Bill 4 should be thoughtful with an informative process that allows time for understanding and discussion – it shouldn’t be drafted in secret by one party and passed in a day at a special legislative session, according to experts.

“This just reinforces the public perception that the courts are political in nature,” said Michael Crowell, a partner at the law firm of Tharrington Smith and former professor at the UNC School of Government.

Senate Bill 4 as signed into law is 27 pages. It has a lot of moving parts, but much of the bill takes on the judicial system.

Among other things, it reestablishes partisan judicial elections for the state Supreme Court and Court of Appeals, adds a layer to the appellate process and eliminates a right of appeal directly to the state’s high court for some cases.

Below is a breakdown of what some of the judicial implications of the new bill might bring:

Party labels

Partisan judicial elections are not recognized as a best practice, and North Carolina joins only seven other states that use party labels to identify judges on the ballot.

Emily Turner, the Leslie J. Winner Public Interest and Civil Rights Fellow at the North Carolina Justice Center, said partisan elections attempt to further politicize the already problematic process of judicial elections and pointed to research from Princeton University that found appointed justices are more effective than their elected counterparts. The Justice Center is the parent organization of NC Policy Watch.

In the study to which Turner referred, researchers concluded after studying almost 6,000 state Supreme Court rulings that appointed justices generally bring a higher quality of information to the decision-making process, are more likely to change their preconceived opinions about a case and are less likely to make errors than elected justices.

Proponents of the section of Senate Bill 4 that reestablishes partisan elections said during the special session last week that voters need party labels to help them make an informed decision at the polls. Opponents said that judges should be free of political influence.

“When it comes to judicial elections, you want to try to remove as much of the politics as possible,” said Bob Phillips, Executive Director of Common Cause North Carolina.

Adding party labels back into the mix subjects judges to polarizing campaigns that highlight court decisions in a political context, he said.

“I don’t think that’s healthy for the judiciary,” Phillips added.

When asked for a comment from North Carolina Supreme Court Chief Justice Mark Martin on the new partisan election law, Sharon Gladwell, communications director at the North Carolina Administrative Office of the Courts, declined.

“Regarding Senate Bill 4’s effect on the Supreme Court elections, the Court does not comment on matters that may arise in litigation before the Court,” she said in an email.

En banc

One of the provisions in Senate Bill 4 adds an en banc review to the Court of Appeals process. En banc means that all 15 judges would review a case, versus the three-judge panel that is usually assigned to cases.

Federal appeals courts conduct en banc hearings, though somewhat rarely, and the concept isn’t necessarily bad, experts say, but the motivation and timing behind Senate Bill 4 is.

“I have nothing against en banc review at the court of appeals—that’s an idea that’s been around a long time, but it’s hardly the kind of thing that needs to be passed in a special session without any time for presentation or discussion,” said Joseph Blocher, a professor at Duke University Law School. “Judicial administration is important, but it’s not hurricane relief.”

The Court of Appeals has an 11-4 Republican majority, compared to the Supreme Court, which will have 4-3 Democratic control in January, once Mike Morgan takes the bench. He won the recent Supreme Court election over incumbent Justice Bob Edmunds, flipping the court’s partisan control.

“No doubt, legislators had in mind that there’s a majority of Republicans on the court,” Crowell said, adding though that they probably didn’t realize there likely won’t be a lot of cases actually reviewed en banc. “It’s bound to be a cumbersome process.”

Adding en banc review could create a delay in getting cases to the state Supreme Court and pile on the already overworked state Court of Appeals, according to Turner and Crowell. In 2015 and 2016, Supreme Court justices wrote an average of six opinions per justice (there are seven) per year. By contrast, each judge on the Court of Appeals writes more than 100 opinions per year.

“It’s to the Republican advantage right now to have delay, but [lawmakers are] making a presumption that the judicial process is politicized in the same way they are right now,” Turner said. “It’s not true that judges rule solely based on political affiliation … and they’re making negative assumptions about the political integrity of our appellate bench.”

What will trigger the en banc process has yet to be decided. Gladwell said the Supreme Court and the Court of Appeals are assessing the administrative ramifications of Senate Bill 4’s requirements with regard to en banc procedures.

“The two courts will work with the Appellate Rules Committee to administratively craft Rules of Appellate Procedure to accommodate en banc proceedings,” she said. “Comment on the potential effects of the new en banc procedure would be both premature and inappropriate given the absence of these new rules, the uncertainty as to how litigants will choose to unveil themselves of the process, and the possibility that the matter may be subject to litigation before either or both courts.”


Chart showing North carolina's court appeals process
Visualization by Nelle Dunlap

Direct appeal elimination

Senate Bill 4 also eliminates a direct right of appeal to the Supreme Court when a trial court finds that a state law violates either the North Carolina constitution or federal law.

Before the bill was passed, cases in which laws were found to be unconstitutional or to have violated federal law could skip the Court of Appeals and go directly to the Supreme Court.

“It’s troubling that the bill eliminates appeal as of right to the Supreme Court from judgments finding an act of the General Assembly unconstitutional,” Blocher said. “Striking down unconstitutional laws is a basic function of the judiciary, and when you alter that process you’re tinkering with the whole system of checks and balances.”

Blocher said without some better explanation of the provision, it’s hard not to see it as an attempt to gerrymander the courts.

“Republicans apparently want to steer constitutional challenges away from the Supreme Court and to other courts they think will be more friendly,” he said. “I imagine they’re concerned about some of their laws being struck down as unconstitutional, and want to slow down that process.”

Turner agreed that the provision would create more delay and said lawmakers appear to be trying to make it more difficult for litigants who want to challenge cases.

“The longer it takes, the more likely it becomes that the facts of a case become moot,” she added.

Despite Senate Bill 4, the Supreme Court can still reach down and take cases it feels it should review. Turner said if a case is facially unconstitutional, it’s probably going to involve a hot-button issue and might be a time the high court would exercise that option.

She expressed concern about the special session as a whole and said if what the legislators were doing really was in the best interest of the courts, the process would “not look like this.”

“The court system is being meddled with without the appropriate planning and forethought and with what would appear to be partisan goals,” she said.

Crowell agreed and said the nature of the legislative process is supposed to be deliberative. He also said that public perception of the courts is important, and with already limited knowledge, passing something like Senate Bill 4 so quickly adds to the sense that the courts aren’t neutral.

“What on earth are [legislators] scared of that they don’t want to give people notice of these things?” he asked. “Even if the legislation is perfectly benign, why do it this way?”