Judges, not legislators: the legitimacy of the Court is a question of precedent


Rob Schofield

Perhaps change was an inevitable byproduct of our busy and contentious times.

Perhaps it was naïve to think that things were radically different in the past.

Either way, one thing is certain in 2022, and that is that the public perception of the American justice system as a neutral dispenser of blind justice is no longer what it used to be. And indeed, these altered perceptions may reflect a new, sobering and deeply politicized reality.

As has been made painfully clear in a series of reports and commentaries since Republicans swept multiple North Carolina appeals court races in the recent election, there is a widespread perception across the political spectrum that this development will lead to sudden and dramatic reversals in some very important areas of constitutional jurisprudence — perhaps even with respect to some landmark decisions whose ink is barely dry.

As veteran journalist and North Carolina Council of Churches commentator Steve Ford explained in an insightful column last week, one such high-profile case in the school fundraising case Leandro, aged 28 years old.

Last month, after witnessing more than a quarter century of willful and infuriating disregard by elected leaders of its 1997 ruling that public schoolchildren across the state have a constitutional right to a “good basic education,” the state Supreme Court ultimately ordered the legislature to appropriate the funds necessary to provide it.

But as Ford detailed, Republican legislative leaders reject the idea that the court could enforce such an order, and many observers now suspect/fear that the GOP will soon enjoy a 5-2 majority on the court. — a majority that includes the Republican Senate Leader’s son and former GOP Senate caucus member — the new lineup will spur a 180-degree reversal of course.

“How such a reversal would occur is both unclear and problematic,” Ford wrote. “One could assume that this is an attempt to prevent the decision from taking effect. But if a partisan or ideological shift in the makeup of our appeals courts is allowed to bring sweeping changes to the way laws are applied, it can fuel the corrosive sense that supposedly impartial courts have been politicized. Respect for precedent can be followed out the window, but disrespect does its own kind of harm.

And the Leandro case is far from the only case on which such a dramatic about-face could possibly occur.

As NC Policy Watch’s Lynn Bonner explained in a recent report, the High Court’s ruling that the General Assembly acted unlawfully when it placed a pair of constitutional amendments to mandate voter ID and capping the state income tax rate on the 2018 state ballot because its members were elected in unconstitutionally drawn electoral districts continues to draw fire from conservatives as it spreads in the courts.

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And then there are some criminal court rulings on which reform proponents fear the GOP’s “tough on crime” campaign mantra could very well result in reversals of hard-won progress.

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As NC Policy Watch’s Kelan Lyons reported last week, two in particular stand out: racial discrimination in jury selection and limits on how long a child must serve in jail before the child is eligible. on conditional release.

The notion of high courts turning to the hard right due to political and electoral activism is not unique to North Carolina. Republicans have made such a change a national domestic policy goal for years – a change that the conservative majority of the United States Supreme Court put an exclamation mark on earlier this year with its extraordinary decision and earth-shattering to remove a fundamental constitutional right by reversing Roe v. Wade.

That said, the Roe inversion at least took decades to lay the groundwork and execute. And even with that, it was a decision that took public respect for the highest court in the land to new and startling depths. As Steve Ford has pointed out, the idea that the North Carolina Supreme Court would simply remove important constitutional protections just months or years after they were first formally conferred would be a remarkably brazen act. and disturbing.

The Bottom Line: While it’s not surprising or even inappropriate that recent election change is spurring a step-by-step ideological shift in the court’s approach to some issues, North Carolinians have a right to expect that judges act like judges – not like legislators.

This means that, in accordance with centuries of judicial practice, the new tribunal will respect established precedents and not undermine its own legitimacy by rushing to overturn recent court rulings simply because certain members of the tribunal might have decided cases differently. ‘they had been there when the judgments were given.

Fortunately, during their recent campaigns, the two newly elected Republican justices – Richard Dietz and Trey Allen – have pledged to interpret and apply the law fairly and neutrally and not bring a political agenda to their new positions. .

All North Carolina residents have a right to expect to uphold this commitment.

Rob Schofield is director of NC Policy Watch, the news and commentary arm of the progressive North Carolina Justice Center.

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