NC Supreme Court’s unleashed activism now moves at full speed | Opinion
Some things no longer surprise. Late last month, the Republican state Supreme Court granted a procedurally unusual request to review aspects of our long-standing school funding litigation (Hoke County Board of Education v. State Board of Education).
Senate Leader Phil Berger and Speaker Tim Moore had asked the court to reexamine issues of subject-matter jurisdiction in the decades-long dispute. The Republican justices readily agreed.
Our new tribunal has repeatedly shown a willingness to set aside old-fashioned concepts like the rules of appellate practice, stare decisis, finality, constitutional precedent and the law of the case to push forward its bold and partisan mission. Its unleashed activism now moves full speed.
And, if we’re looking for patterns in decision-making, here is the true and unyielding marker. If Berger and Moore ask the new Republican court to do something, it shall be done. Straightaway.
So everyone knew this was coming. There may be some mystery about how the justices will eventually explain themselves, but here is what’s certain. The educational interests of poor and at-risk kids in North Carolina public schools will be cast aside and the uncontestable majesty of the N.C. General Assembly will be secured. Count on it.
This vast and utter rejection of the foundational notion of independent judicial review is now upon us. Full-throated and boastful. We may detest it. But it is here. Chief Justice Paul Newby and his friends tell us it’s a “course correction.” Get used to it. Constitutional accountability be damned.
But there’s one thing the old lawyer in me still manages to be stunned by.
When I read the court’s new order in Hoke it began, as appellate cases do, with a title — listing the parties, the court, and the judge or judges announcing the ruling. Here it was “Hoke County Board of Education (plaintiff) v. State Board of Education (defendant)” and “Phillip Berger and Timothy Moore, intervenor-defendants.” Well and good.
Then, a couple pages down, after a brief description of the order, it announces a fuller opinion entitled “Justice Berger concurring.” The same thing happened a few months ago in the court’s landmark Voter ID decision. It read “Jabari Holmes, et al. v. Timothy Moore and Phillip Berger,” then the decision was announced by “Justice Berger.” That’s Supreme Court Justice Phil Berger Jr., son of North Carolina’s Senate leader.
I know Justice Berger (the son) has a cascade of arguments that he doesn’t have to recuse himself in cases involving his daddy, and apparently his Republican colleagues will assure nothing can be done to stop it. Still, I’ve been reading appellate decisions for almost 50 years and I can’t remember ever seeing that particular configuration: Party One v. Party Two, judicial opinion by Party Two’s son. Maybe it’s around somewhere, but I’ve never seen it.
In Justice Berger’s Hoke opinion, he blasts Justice Anita Earls and her “ad nauseum fanciful protestations.” It’s a good thing the N.C. Judicial Standards Commission doesn’t investigate Republican justices for disparaging their Democratic colleagues. Later, he explains the court is “duty-bound” to address “the jurisdictional theories (presented) in the briefs of the “Legislative-Intervenors.” And who are the “Legislative-Intervenors”? His daddy and Speaker Moore. No wonder he used the legal jargon. It’s got to be a tad uncomfortable saying, “we have to take my daddy’s arguments seriously.”
I suppose this is what we face in North Carolina. But I wish they wouldn’t rub our noses in it.
Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.
