In an otherwise grim election for Democrats, North Carolina progressives celebrated a victory that, while receiving little attention nationally, had the potential to deliver big results in the state: A black Democrat named Mike Morgan defeated the state’s most senior associate justice on the North Carolina Supreme Court, tilting the court’s balance of power in favor of Democrats.
In recent years, North Carolina’s highest court has become the arbiter of some of the state’s most controversial issues. A series of voting rights cases have wound up with the court’s conservative majority, which has steadfastly rejected claims that the state legislature has drawn voting maps that have disenfranchised minority voters. As a new round of redistricting from the Republican-controlled legislature looms, which will undoubtedly result in legal challenges by Democrats, the court’s newly elected liberal composition carries wide implications, and is a bright spot for the state’s embattled progressives.
But, last Thursday, the John Locke Foundation, an influential conservative think tank based in Raleigh, began openly floating a plan on its website for Republicans to use legislation to preserve the court majority they lost in the state’s popular vote. According to the plan, legislators could swiftly add two additional seats to the state supreme court, and Republican Governor McCrory would appoint the new justices before New Year’s Day. Thus, when he is sworn in in January, the new Justice Morgan would find himself in a Democratic minority. (Although McCrory appears to have lost his seat to Democrat Roy Cooper, pending a recount, McCrory would still have the ability to make the court appointments during his final weeks in office.)
Discussion of the potential court-packing plan has now reached a fever pitch in the state’s political circles, as the state’s highest Republican leaders have steadfastly refused to comment on whether or not they intend to do it. “We’re not issuing statements or comments on it at all,” said Joseph Kyzer, spokesperson for Republican Tim Moore, speaker of the state House of Representatives. Kyzer told The New Republic that the discussion of possible court appointments centered on “rumors,” but declined to confirm or deny the existence of the alleged plan.
In a state where Republicans have sometimes allowed mere hours for public review of major pieces of legislation—such as the now-famous law known as HB2 that restricts protections for transgendered people—the absence of an official denial from Republicans has left Democrats fearing the worst.
Such a move would add North Carolina to a list of states where, after a wave of Republican victories, legislators have attempted to change the composition of Supreme Courts with far-reaching political ramifications. It would also be apiece with what Democrats see as a concerted effort by North Carolina Republicans to make it more difficult for voters to select the candidates of their choice.
This all began anew with the Supreme Court gutting the Voting Rights Act in its landmark 2013 case Shelby County v. Holder, which removed a requirement that states with a history of racial discrimination receive approval from the Justice Department for all changes to election law. Republican legislators in North Carolina quickly afterward crafted a bill containing a strict voter ID law and various other voting restrictions, which have been found by federal judges to have a discriminatory impact on minority voters. (A federal court found the laws “target African-Americans with almost surgical precision.”) Before Shelby, North Carolina would have had to submit a plan to add any additional justices to the Supreme Court for federal review, according to Leah Aden, an attorney at the NAACP Legal Defense and Educational Fund. Now, North Carolina legislators can make such voting changes with no such federal vetting.
“If Republicans decide to do this, they will have effectively negated the power of every single vote for every single Supreme Court justice,” said Graig Meyer, a Democrat in the statehouse. “And that is an undermining of democracy.”
Some Republicans are worried about the potential blowback.
Bob Orr, a Republican who recently served as associate justice for ten years on the North Carolina Supreme Court, told me that Republicans who are “active in the state” have recently expressed to him that the court plan could happen. A self-described friend and supporter of McCrory, Orr says that the biggest problem with the plan is the absence of any practical explanation to provide voters, aside that of pure partisan politics. “There is clearly no justification for the expansion of the court based on the caseload,” Orr said. “The caseload has been down significantly over the last eight to ten years.”
“So then the question would be: Why would you add to it?” Orr continued. “And I don’t think there’s any doubt that the primary motivation would be to secure a majority of Republicans on the court.”
This could generate a public backlash that Republicans would do well to consider before moving forward. Earlier this year, Arizona Republican legislators faced an outcry after creating two seats on the state Supreme Court to be appointed by conservative Governor Doug Ducey. In that case, the proposal moved forward despite the state’s sitting justices initially insisting that the court’s justices needed no further help. Those assertions reportedly became less forceful after lawmakers proposed additional funding for the court.
Arizona was not alone, according to a briefing paper published by the National Center for State Courts released earlier this year, which noted a recent national uptick in such court-packing efforts. The paper noted that these legislative attempts often included an attempt “to link court expansion with additional funding for the judiciary.”
In North Carolina, where the state constitution explicitly lays out the right to create new justices, Democrats are scrambling to get in front of the issue. Meyer says that he’s focused on making a common-sense pitch to Republicans that packing the court would not only be unpopular but would also undermine basic principles of democracy and fairness.
“I think there’s an appeal to their conscience that we can make about the balance of powers and the need to have depoliticized judicial branch,” Meyer said, adding that he hopes to have “esteemed state leaders talk with individual state legislators and say: ‘Hey this is just a bad idea.’”