The last batch of N.C. Supreme Court opinions for 2017 confirms what court watchers have witnessed during the rest of the year: A change in the court’s partisan “control” has not translated into a clear split of justices along party lines.
The high court’s four registered Democrats lined up against its three Republicans a grand total of two times in 58 cases decided this year. Meanwhile, justices decided the results in 48 of 58 cases unanimously.
If partisan court fights are forthcoming, the results might have to wait until 2018.
Justices issued no 4-3 split rulings Friday — the last date for new court opinions during the calendar year. Instead, the court decided five of the year’s last seven cases with unanimity.
In another case, State v. Fletcher, dealing with sexual exploitation of a minor, justices reached unanimous agreement on a result that denied a new trial for the defendant. The court’s newest justice, Michael Morgan, disagreed with colleagues on the legal basis for the ruling. He concurred with the result of the case without endorsing the majority opinion from fellow Democrat Sam Ervin IV.
The only case Friday that produced a dissenting opinion, State v. Moore, involved a three-way split among the court’s Democrats. Justices ultimately ruled, 6-1, that a criminal on probation had received adequate notice of his probation revocation hearing. But, in addition to Democrat Cheri Beasley’s first written dissent of the year, fellow Democrats Ervin and Robin Hudson split from the majority coalition that united Morgan and the three Republicans. Hudson joined Ervin’s concurrence supporting the majority’s result but not all of its findings.
Beyond the specifics of Friday’s cases, year-end statistics offer some insight into shifting coalitions that help decide state courts’ toughest legal and constitutional disputes.
Looking at results alone, Chief Justice Mark Martin and fellow Republican Paul Newby agreed in 57 of 58 cases. Newby agreed with the other Republican justice, Barbara Jackson, 56 times. Martin and Jackson agreed in 55 cases.
Among Democrats, Beasley and Hudson had the greatest rate of agreement: 55 of 58 cases. Ervin and Hudson agreed in 54 of 57 cases, while Hudson and Morgan agreed 53 of 56 times. Each of the other three Democrats agreed with Hudson more often than with anyone else.
Hudson also appeared most often in the majority: 56 times among the 58 cases. Jackson ranked second, with 55 appearances in the majority. Like Jackson, both Ervin and Morgan dissented three times. But Ervin did not participate in one case, so he joined the majority 54 times. Morgan sat out two cases, so he appeared in the majority 53 times. Martin’s four dissents left him with 54 appearances in the majority.
Beasley and Newby were the most frequent dissenters, with five apiece. Still, each appeared in the majority 53 times. That’s 91 percent.
The Democrat Beasley and the Republican Newby disagreed most often: 10 times. In fact, they appeared on opposite sides in every case this year that produced a split result. The number of dissents cited above tells us that those splits placed Beasley in the majority half the time and Newby the other half.
Yet it would be a mistake to view these two justices as representing opposite poles in legal or judicial philosophy. Newby joined four of Beasley’s five majority opinions. Beasley signed on to six of Newby’s seven majority opinions. Most of their disagreements involved opinions written by their other five colleagues.
From a partisan standpoint, the court’s most interesting pairing in 2017 involved Democrats Ervin and Morgan. While they agreed in 49 of 55 cases (89 percent), each agreed at least as often with Republicans as with each other. Jackson and Morgan agreed in 52 of 56 cases (93 percent). Ervin and Martin agreed 52 of 57 times (91 percent).
One could devour each statistic and still believe that justices will split along party lines when they end up deciding a case like Cooper v. Berger, which pits a Democratic governor against a Republican-led General Assembly.
That’s entirely possible. Recent comments from Gov. Roy Cooper suggest he might be hoping for such a result, especially after the 2016 election flipped the court’s 4-3 majority from Republicans to Democrats.
But data from 2017 suggest a court that features both a high degree of unanimity and a willingness to assemble majority coalitions that defy party labels.
If those characteristics carry forward into the new year, partisans might be surprised by the results.
Mitch Kokai is senior political analyst for the John Locke Foundation.