Win the courts, win the war

By: - December 15, 2015 1:02 am

Conservative justices hold a 4-3 majority on the ostensibly nonpartisan state Supreme Court and, as party operatives understand well, maintaining that edge has been critical to ensuring Republican control elsewhere throughout the state.

The N.C. Supreme Court building in downtown Raleigh. (Photo by Ricky Leung)
The N.C. Supreme Court building in downtown Raleigh. (Photo by Ricky Leung)

“Lose the courts, lose the war.” Political consultant John Davis labeled this “Rule Number Five” in his 2013 report, “How the North Carolina Republican Party Can Maintain Political Power for 114 Years.”

“The Republican majority has a right to initiate radical reform,” Davis wrote. “Everyone else has a right to sue them. That’s why [the 2014] Supreme Court races are critical for long-term Republican dominance.”

Bolstered by the legislative majority’s repeal of the state judicial public financing program in 2013 and by millions in donations from outside political groups as a result of the U.S. Supreme Court’s Citizens United decision, conservative justices have held on to that control in subsequent elections.

Party lawmakers did their part to protect that control, enacting a law in the waning days of the 2013 session that gave the justices the sole authority to discipline judges — including themselves — and allowed them to decide if, when and whom to discipline in secret.

Both Justice Sarah Parker, then serving as chief justice, and Judge John Martin, head of the Judicial Standards Commission, had objected to such a drastic change in the handling of judicial ethics complaints. But during debate on the bill, lawmakers said that Justices Paul Newby and Mark Martin had been pushing for the law, leading to speculation that some justices may have wanted to silence such complaints ahead of the upcoming election.

During the 2015 legislative session, the conservative majority passed yet another law that all but ensures continuing control on the court through the use of retention elections. State Supreme Court justices running for reelection now no longer have to face a challenger; instead, their reelection will be determined by voters giving them an up-or-down vote.

Should the voters not approve the justice, the governor will choose an interim justice who will sit for two years and then run for election. The law is effective immediately and will benefit conservative Justice Robert Edmunds, whose term is up in 2016.

The justices like to say that party labels don’t matter when they are deciding cases, and in many instances that’s true. Most opinions handed down by the court are unanimous. But in matters steeped in partisan or philosophical ideology, they align with their like-minded colleagues and opinions issued in recent years reflect that divide.

In decisions that split along party lines, the justices have upheld conservative redistricting maps, turned North Carolina’s consumer protection law on its head, weakened Fourth Amendment search and seizure protections and sustained the private school voucher program.

In 2012, for example, in a 4-3 decision written by Justice Paul Newby, the conservative justices ruled in Heien v. State that so long as a police officer’s mistaken view of the law is reasonable, a traffic stop based upon that view is justified under the Fourth Amendment. The U.S. Supreme Court later upheld that decision, giving rise to what Justice Robin Hudson predicted in her dissenting opinion and what N.C. Policy Watch has called “the Heien effect” — courts excusing mistakes by police when making traffic stops based on a misunderstanding of what the law is — with violations ranging from brake lights to trailer hitches to air fresheners.

In 2013, in a 5-2 decision also written by Justice Newby, the conservative justices (joined this time by then-Chief Justice Sarah Parker, who frequently sided with the majority) ruled in Bumpers v. Community Bank of Northern Virginia that consumers suing banks for deceptive practices had to prove that they relied on those practices in order to recover under consumer protection laws. Consumer advocates uniformly agreed that the court’s decision struck a blow to consumer rights, making it much harder to make a case for deceptive practices.

Bob Phillips of Common Cause North Carolina discusses how voting rights and the state’s pro-democracy laws have shifted over the last five years.

“It’s a terrible decision for consumers,” Margot Saunders of the National Consumer Law Center said at the time.

In the 2014 decision Dickson v. Rucho, written by Justice Edmunds, the conservative justices by a 4-2 vote (then interim justice Robert Hunter abstained) upheld the 2011 redistricting maps adopted by Republicans in the General Assembly, finding that lawmakers were justified in drawing districts based upon a mechanical formula (50 percent plus one of black voting age population) in order to avoid liability under the Voting Rights Act. That logic has since been called into question by the U.S. Supreme Court in an Alabama redistricting case decided last year.

And in 2015, in the 4-3 Hart v. State decision written by Chief Justice Mark Martin, the majority upheld a school voucher program that allows taxpayer dollars to fund tuition for private schools that have virtually no legal obligation to provide students with even a basic education.

[email protected]

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.