Ever since the 2016 election, many N.C. Republicans have feared — and many Democrats have hoped — that a partisan realignment on the N.C. Supreme Court could put the brakes on policies and programs put forward by the GOP-led General Assembly.
But there’s an alternative path. Rather than following Gov. Roy Cooper’s lead and taking aim at the Republican legislature, the state’s highest court could maintain a focus solely on settling legal and constitutional disputes.
It’s far too early to tell whether justices will follow that path. Last week’s court order in the case of Cooper v. Berger offers at least a glimmer of hope.
To recap, North Carolina’s officially nonpartisan Supreme Court operated with a 4-3 Republican majority until Superior Court Judge Mike Morgan, a registered Democrat, unseated incumbent Republican Justice Bob Edmunds in November. Now, if justices split on a partisan basis, Democrats hold a 4-3 edge.
That’s a big “if.” Cases decided so far this year paint a picture of a much more cooperative court. Twenty-seven of 32 Supreme Court opinions posted since January have expressed unanimous agreement. Even the cases that have divided the court haven’t followed strictly party lines.
The year’s first decision, a medical malpractice case called King v. Bryant, included no input from Morgan. The court split, 4-2, with Republican Justice Barbara Jackson joining the court’s three other Democrats. The two remaining Republicans, Chief Justice Mark Martin and Justice Paul Newby, wrote separate dissents.
Both cases decided this year with a 5-2 margin have featured an even split among the court’s four Democrats. In State v. Miller, which addressed a state law linked to methamphetamine, Democrat Sam Ervin IV wrote the majority opinion. Morgan and Democrat Cheri Beasley dissented. In Wray v. City of Greensboro, which resolved portions of a dispute between the city and its former police chief, Democrat Robin Hudson wrote for the majority while Ervin and Beasley dissented.
Just two cases have produced 4-3 splits. In the first, a dispute involving a construction loan that hinges on the “doctrine of judicial estoppel,” Morgan joined the court’s three Republicans. The other three Democrats dissented.
The only case that has produced a 4-3 partisan split was the June decision in State v. Romano. That case dealt with blood test results from a 2014 Buncombe County drunk driving case. The court’s Democrats supported Beasley’s opinion. The Republicans joined Martin’s dissent. Newby added his own separate dissent.
Political observers will note, correctly, that the high court has not yet ruled in any case that pits Democratic Gov. Roy Cooper directly against Republican Senate President Pro Tem Phil Berger and House Speaker Tim Moore. But the name alone suggests that the Cooper v. Berger case will provide the first test of the court’s ability to avoid a purely partisan division when settling a separation of powers dispute.
The case stems from the governor’s objection to the legislature’s merger of state elections and ethics boards. Lawmakers created a new eight-member oversight group with an even number of Democrats and Republicans. Legislative leaders tout the change as bipartisan, but Cooper isn’t buying it. He contends the change from a five-member board with three Democrats would take away his constitutional executive power to control the state agency that oversees elections.
It’s not clear when the Supreme Court will issue a final decision in the case. But the glimmer of hope for a nonpartisan legal approach stems from the course of action the Supreme Court took late Friday afternoon.
The original three-judge panel considering Cooper v. Berger punted on a decision. The panel had dismissed Cooper’s complaint against legislative leaders. The judges argued they “lacked jurisdiction” over the issues Cooper raised in his lawsuit.
Had the Supreme Court’s four Democrats wanted to rush a decision favoring Cooper, they could have followed up their Aug. 28 hearing in the case with a ruling endorsing the governor’s arguments.
Instead the full Supreme Court asked the three-judge panel to reconsider its earlier decision. In an order that shows no sign of dissent, Morgan reminded the trial court of its role of “hearing claims in the first instance, even when the issue presented is solely a question of law.” The newest justice also reminded the panel that the Supreme Court’s role is to review trial court rulings and address errors.
The “proper administration of justice would be best served” if the trial court took another look at the case, Morgan wrote.
Cooper’s spokesman praised the order, but it’s not clearly partisan. Democratic and Republican justices alike might be just as willing to support Morgan’s reaffirmation of standard procedure in this type of legal dispute.
The three-judge panel must reach a new decision within 60 days, and the case will head straight back to the Supreme Court. It’s entirely possible at that time that justices will split, 4-3, along party lines.
But they have not yet blocked the path of following the law where it leads and leaving politics to the politicians.
Mitch Kokai is senior political analyst for the John Locke Foundation.