The North Carolina Supreme Court: A Special Issue Report by Scott Gaylord & Joshua Davey OCTOBER NC 2008 ABOUT THE FEDERALIST SOCIETY Th e Federalist Society for Law and Public Policy Studies is an organization of 40,000 lawyers, law students, scholars and other individuals located in every state and law school in the nation who are interested in the current state of the legal order. Th e Federalist Society takes no position on particular legal or public policy questions, but is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. Th e Federalist Society takes seriously its responsibility as a non-partisan institution engaged in fostering a serious dialogue about legal issues in the public square. 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The North Carolina Supreme Court: A Special Issue Report Scott Gaylord & Joshua Davey Despite receiving much less attention than the The North Carolina elections for state and federal executives and legislators, the North Carolina Supreme Court elections are Supreme Court: extremely important. At the time of the founding, A Special Issue Report Alexander Hamilton contended that the judiciary was the “least dangerous branch” because it had “no infl uence over either the sword or the purse.”2 But Hamilton did Scott Gaylord & Joshua Davey not foresee the ever-increasing role that the federal and state courts would play in our federalist system. he 2008 election campaigns are in full force Following Chief Justice John Marshall’s famous decision in North Carolina. Th e airwaves abound with in Marbury v. Madison, the United States Supreme advertisements for President, Governor, United T Court garnered the exclusive authority “to say what the States Senate, and various other state offi ces. Amidst law is,” i.e., to interpret the Constitution and federal all of the media attention devoted to these important and state legislation passed pursuant to its provisions executive and legislative positions, it is easy to forget (which is known as the “power of judicial review”).3 about the third branch in our state democratic system— Consistent with Marbury, our state supreme court has the judiciary. Unlike their federal counterparts on the the power not only to interpret and apply federal law, United States Supreme Court, who are nominated but also to serve as the fi nal authority on the meaning by the President and confi rmed by the Senate, North of state legislation and our state Constitution. Carolina Supreme Court Justices are elected. On Th e power of judicial review, therefore, provides a November 4, 2008, North Carolina voters will elect critical check on the executive and legislative branches. one Justice to an eight year term on the North Carolina Th e North Carolina courts may review challenges to Supreme Court. Moreover, because North Carolina executive and legislative authority and, in the process, Supreme Court elections became non-partisan in 2002, determine whether either branch has violated the state North Carolina voters will elect its next state supreme or federal Constitutions or infringed on individual court Justice without political party affi liations of the rights. Yet, just as it is critical for the courts to keep the judicial candidates on the ballot.1 other branches within their constitutionally proscribed Whatever one’s political or jurisprudential leanings, limits, so the court must not extend beyond its proper the 2008 election comes at a critical juncture for our bounds or usurp the authority of the executive or state supreme court. In the early part of this decade, legislative branch. six of the seven Justices on the court were Republicans. In North Carolina, there are two primary checks on By 2005, the Republican majority had been reduced to the judiciary. First, the individual Justices and judges are 5-2. Following the 2006 election, which was the fi rst charged with policing themselves, i.e., making sure that non-partisan election for the North Carolina Supreme they adhere to the constitutional and statutory limits Court, it was perceived that the Democrats gained imposed on the judiciary. As Chief Justice John Roberts another seat, leaving the Republicans with a slim 4-3 has noted, “[w]hen the other branches of government majority. In 2008, Justice Edmunds, who is one of the exceed their constitutionally-mandated limits, the Republican Justices on the court, is seeking re-election courts can act to confi ne them to the proper bounds. against Suzanne Reynolds, who is considered to be a It is judicial self-restraint, however, that confi nes judges Democrat. to their proper constitutional responsibilities.”4 Second, .......................................................................................... if a North Carolina Justice fails to exercise self-restraint * Scott Gaylord is an associate professor of law at Elon University or otherwise fulfi ll her judicial function, the voters School of Law, where he teaches courses on Constitutional of North Carolina can vote the Justice out of offi ce Law and the First Amendment. Joshua Davey is an attorney and elect someone who more accurately refl ects their with McGuireWoods LLP in Charlotte, North Carolina, and judicial philosophy. As a result, the voters of North practices with the fi rm’s Financial Services Litigation group. 3 Carolina play a central role in our system of checks are determined locally in district races. Th e drawing of and balances—determining who should serve (and congressional and legislative districts is a diffi cult and for how long) in each of the executive, legislative, and often times highly-charged political process. Incumbents judicial branches. have the incentive, and often the power, to draw districts Pursuant to its broad authority to interpret the state that guarantee their incumbency, a practice is frequently and federal Constitutions as well as statutes, the North referred to as “gerrymandering.” Given the central role Carolina Supreme Court decides issues each year that that elections play in our representative democracy are of critical import to the citizens of North Carolina. and the possibility for abuse in creating districts, both For example, since 2007, the court has resolved disputes federal and state law impose requirements for the on a wide range of important topics, including voter creation of voting districts. Because the courts have the rights, church-state relations, workers’ compensation, power to determine “what the law is,” the responsibility the substantive and procedural rights of criminal for interpreting and harmonizing these two sources defendants, and the rights of parties to make enforceable of law falls to the courts. Hence, the North Carolina contracts. Moreover, given that North Carolina adheres Supreme Court plays a critical role in determining the to the principle of “stare decisis”—which “proclaims, in nature of our voting rights and the size and make-up eff ect, that where a principle of law has become settled of the voting districts in North Carolina. by a series of decisions, it is binding on courts and Perhaps the most important source of federal should be followed in similar cases”5—each decision law on this issue is the Voting Rights Act of 1965, of the court may have long-lasting eff ects on North which outlawed discriminatory voting practices that Carolina’s economy, government, and citizens. had been used by states to disenfranchise minority For these reasons, it is critical that North voters, particularly African-Americans. Although the Carolinians learn about the role of the courts. Th is Act helped to eliminate certain discriminatory voting Special Issue Report is intended to assist in that regard practices (such as literary tests), minority candidates by providing an overview of important recent decisions continued to have diffi culty getting elected to state of the North Carolina Supreme Court that highlight and federal offi ces. As a result, subsequent court rulings the diff erent views that the Justices have regarding the applying the Act placed threshold requirements on how proper role of the judiciary in our constitutional system. new districts could be drawn in order to protect the In particular, this Report focuses on those decisions that right of minority populations to elect representatives reveal diff erences in the Justices’ judicial philosophies from their constituent areas, thereby giving a voice to and that have a signifi cant impact on the rights of their concerns in the public debate. North Carolinians in fi ve areas: redistricting, the First More than forty years after enactment of the Voting Amendment, workers’ compensation, criminal law, Rights Act, the courts still are called on to resolve legal and contracts. It is the authors’ hope that this Report issues under the Act. In particular, the North Carolina will help (1) foster public debate and discussion about and United States Supreme Courts’ decisions continue the proper role of the judiciary in our system of checks to have a tangible impact on the creation of voting and balances, and (2) provide a better understanding of districts and accordingly on the ability of candidates the current judicial philosophy of the North Carolina and voters to participate in the political process.