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Don't Pack the NC Supreme Court

Summary

Following the election of Judge Mike Morgan to the North Carolina Supreme Court by an overwhelming margin on Nov. 8 2016, the balance of the court shifted from a 4-3 Republican majority to a 4-3 Democratic majority. Media began reporting days after the election that Republican leaders were rumored to be considering a scheme to add two Justices to the NC Supreme Court, during a “special session” called ostensibly to discuss recovery efforts from the flooding caused by Hurricane Matthew. Gov. McCrory would appoint two new justices before leaving office to fill the new seats until the next election of the General Assembly.Gov. McCrory has said he will call an extra session on Dec. 13th to discuss recovery efforts, but legislators can, by simple majority vote, suspend the rules and take up any matter they wish.

Republican leaders have repeatedly refused to denounce or deny rumors that they will use the special session to add Supreme Court Justices, saying it has not been “formally” discussed and they won’t comment on “rumors.” While legislative leaders deny a Supreme Court packing scheme is under consideration, Senate Leadership put forward a similar proposal in 2013.

Key Points

  • After a bitter and negative campaign, we need to come together and try to seek common ground, but Governor McCrory and the Republicans would instead try to force through controversial legislation that, like HB2, would only further divide North Carolina.
  • Adding two new justices to the Supreme Court is disrespectful to the will of the voters, who recently elected a new justice to the Supreme Court AND voted to replace Governor McCrory.
  • Instead of trying to ensure a smooth transition to help the new governor succeed, some state lawmakers want to change the results because they did not like the outcome of the election.
  • For nearly eighty years, the Supreme Court has existed and functioned well with seven justices.
  • There has been no significant change or increase in the workload of the state Supreme Court over the past ten years, so there is NO reason to add more justices. In the last two years Justices have written six opinions per year on average, while appellate court judges in North Carolina write more than 100.
  • Now after losing the election, the Republicans in the state legislature might try to pack the court with more justices who would rule the way the Republicans in Raleigh want them to, including approving racially gerrymandered districts that segregate African-American voters. It’s just another example of the politicians in Raleigh looking out for themselves and not average North Carolinians.
  • Any special session should only be used to help the flood victims from Hurricane Matthew. Using a special session to make a partisan power grab and overturn an election disrespects the flood victims.

Background

  • Rumors of Republican plans to add Supreme Court Justices were reported within days of the election of Judge Mike Morgan, shifting the partisan balance of the Supreme Court. (WRAL, 11/10/16)
  • There has been no significant change, or increase, in the workload of the NC Supreme Court over the last 10 years. (WRAL, 11/10/16)
  • NC Supreme Court Justices write just 6 opinions per year on average over the last two years, while appellate court judges write over 100. (News & Observer, 12/7/16)
  • The NC Supreme Court reached its current membership of 7 Justices in 1936, it previously never had more than 5 and has never had more than 7 since. (North Carolina Supreme Court History, UNC Law School Dean Martin H. Brinkley, accessed 11/17/16)
  • During a special session, the General Assembly can by simple majority overturn the rules and take up any matter, and are not bound by the governor’s proclamation. (News & Observer, 10/28/16)

Quotes

Bob Phillips, Common Cause NC: “That something like this could even be contemplated and even talked about is dangerous,” Phillips said. “It’s not the will of the voters.” He said something like expanding a state’s highest court requires thoughtful, careful, lengthy discussion, and that this was more reminiscent of House Bill 2, which was rammed through legislation in a day, also in an emergency special session. “That really is unhealthy,” he added.” (NC Policy Watch, 11/11/16)

Bob Orr, former Republican Supreme Court Justice: “The only rationale would be partisan advantage” and added that he would oppose any move in that direction because it would undermine public confidence in the nonpartisan function of the court. (Charlotte Business Journal, 11/14/16)

Richard Vinroot, former Republican Mayor of Charlotte: “I think it’s a terrible idea. I would very much oppose it. Court-packing is a terrible idea.” (Charlotte Business Journal, 11/14/16)

Sen. Dan Blue, Democratic Leader of NC Senate: “This is the height of disrespect of state’s voters. To add justices just because they don’t like the outcome of the election is outrageous.” (WRAL, 11/10/16)

Editorials

Charlotte Observer: “Brilliant, if blatantly offensive.The N.C. Constitution says the court shall consist of seven justices, but also gives the General Assembly the power to add up to two more, to be appointed by the governor. So legislators could convene in coming weeks about Hurricane Matthew recovery and throw in a little high jinks while they’re there. Lame duck McCrory could then spill one last brazenly political stain on his legacy.” (Charlotte Observer, 11/11/16)

Raleigh News & Observer: “Packing the court to offset the effect of an election would be an abuse of the legislative process.” (News & Observer, 11/12/16)

Greensboro News & Record: “The court’s workload — each of the seven justices only writes about four full opinions per year on average — does not justify more hands at the wheel. Adding two justices would be a purely partisan move that would undermine the integrity of the institution. This would appear, rightly, to be a political takeover of the court and an obvious effort to reverse the voters’ decision. The judicial branch should be as independent as possible from influence by the executive and legislative branches. Court-packing would compromise that independence by subjecting the courts to political manipulation. Trying to change the outcome of elections after the votes are counted isn’t democratic, and it should not happen in North Carolina.” (News & Record, 11/17/16)

Winston-Salem Journal: “Packing courts for political advantage was wrong when Democratic President Franklin Roosevelt tried in vain to do it with the U.S. Supreme Court in the 1930s and was beaten back by Congress, and it’s just as wrong now… GOP leaders should loudly denounce any idea of packing our state’s highest court.” (Winston Salem Journal, 11/16/16)

Fayetteville Observer: State GOP leaders should resist court expansion “Republican leaders should more forcefully clarify they will reject court-packing, which will undermine faith in the voting process, as one party tries to win using means other than the ballot box.” (Fayetteville Observer, 12/5/16)

Wilmington Star-News: “This is the sort of raw, brass-knuckles partisanship that Republicans used to denounce when Democrats ran the show in Raleigh. Now, the GOP has proved it is no better, and, in many cases, worse.” (Star News, 11/20/16)

Salisbury Post: “Such an attempt to thwart the will of the people would be disgraceful — political hackery, rather than ordinary politics, let alone political leadership. Voices of reason in both parties should speak out against any such ‘court-hacking’[sic] plan.” (Salisbury Post, 11/30/16)

Bloomberg: “This really would be rigging the system, the sort of thing President-elect Trump might rail against. Except the victims would be African-Americans and Democrats. If North Carolina Republicans go through with their plan, it will recall President Franklin D. Roosevelt’s disastrous effort to pack the U.S. Supreme Court in 1937.” (Bloomberg, 12/6/16)

Republican leaders have denied court packing rumors, but they suggested a similar scheme in 2013

2013 Power Grab Bill included “court-packing scheme, reminiscent of President Franklin Roosevelt’s failed attempt in 1937… GOP leaders promise to resurrect it later this session.” “The bill was to add two justices to the state Supreme Court, to be appointed by Republican Gov. Pat McCrory. That court-packing scheme, reminiscent of President Franklin Roosevelt’s failed attempt in 1937, would have let Republicans take control of the Democrat-controlled court without an election. That provision was stripped from the bill but GOP leaders promise to resurrect it later this session. They shouldn’t. And if this bill makes it to McCrory’s desk, he should veto it, for the sake of his state. This is more than the winners enjoying the spoils. It is a dangerous abuse of power.” (Charlotte Observer, editorial, “A dangerous power grab at the legislature,” 2/5/13; S10)