Professor Christine Coughlin (JD ’90) takes on North Carolina court-packing rumors on Huffington Post blog

Photo of Wake Forest Law Professor Chris Coughlin

Chris Nero Coughlin is a recipient of the Joseph Branch Award for Excellence in Teaching and a two-time recipient of the Graham Award for Excellence in Teaching Legal Research and Writing.

Professor Christine Coughlin (JD ’90) originally published the following post, “Court-Packing Rumors In North Carolina And The Need For Judicial Independence,” on The Huffington Post Blog on Nov. 22, 2016.

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While the Constitutions of the United States and North Carolina provide the blueprint for our government’s structure and the rights we all enjoy, this blueprint, and our associated rights, are meaningless without independent courts to protect us. The principle of judicial independence—that is, our courts should not be subject to partisan influence from other governmental branches—is one of the most revered principles in our country. Indeed, in North Carolina, while candidates disclose political affiliation, Supreme Court judicial elections are supposed to be nonpartisan and subject to the will of the people.

Recent events threaten to change this. On November 8, Judge Michael R. Morgan, defeated incumbent Justice Robert H. Edmunds in the general election for the North Carolina Supreme Court by a margin of 54.06% to 45.94% shifting the balance of the Court toward justices with Democratic affiliations. Various news outlets now report that Governor McCrory and the General Assembly may call an emergency legislative session purportedly to provide additional relief for victims of Hurricane Matthew. During this emergency session, so the rumor goes, the General Assembly may pass legislation creating two new Supreme Court seats, to be filled by McCrory appointments, to shift the balance of the Court back to a Republican affiliated majority.

Court-packing legislation is inconsistent with North Carolina law, violates North Carolina practice, and contradicts the philosophy of citizen-based government. While there are historical examples of both Democrats and Republicans attempting to take partisan advantage of the judiciary, never before has court packing been attempted with our state’s highest court. The time has come for both parties to rise above politics and to embrace the principle of judicial independence.

Since the North Carolina Constitution was adopted in 1868, and revised in 1971, we have never had more than seven Supreme Court Justices (one Chief Justice and six Associate Justices). While Section 6 of Article IV permits the General Assembly to increase the number of Associate Justices to “not more than eight,” it has never seen a need to do so.

Historically, the Administrative Office of the Courts (AOC) requests additional judicial seats when the workload of the court justifies the need. This is, in part, because of the significant long-term expenses incurred with a new judicial seat. Here, expenses would include, but not be limited to, building and maintaining two new judicial chambers, overhead, salaries, expenses and benefits for two new Associate Justice, law clerks, staff and administrative assistants. To my knowledge, there have been no studies or evidence supporting a need to increase the size of our Supreme Court based on workload. In fact, while North Carolina Court of Appeals’ judges average more than 100 opinions per year per judge, Supreme Court justices average approximately five opinions each per year. Given this, if the General Assembly wishes to create additional seats, it should work with the AOC to study the Court’s workload needs before incurring these expenses. Absent demonstrated need, such expenses (that will be passed on to the taxpayers) should not be taken lightly in these economic times.

There are also possible questions about how these positions could be filled under a textual analysis of Article IV, Sections 6, 16 and 19. While some argue that Governor McCrory could appoint judges under Article IV, Section 19 of the North Carolina Constitution, that argument appears inconsistent with Section 16 that requires Supreme Court Justices to be “elected by the qualified voters of the state.” Basic canons of interpretation require us to read sections of the North Carolina Constitution consistently, and not in a manner that may render one section meaningless. Case law that supports the Section 19 appointment interpretation is distinguishable.

Recent election litigation has affirmed the importance of competitive judicial elections under our Constitution. In 2015, Governor McCrory signed into law a bill that required sitting Supreme Court Justices to undergo a “yes” or “no” retention election instead of a competitive election. The North Carolina Supreme Court, in a 3 to 3 split, upheld the lower court’s decision that the retention law was unconstitutional because it was not an “‘election’ for the office of supreme court justice as required by the constitution.”

Real questions exist whether the rumored court-packing plan could survive legal challenge. However, legal challenges aside, any lame duck restructuring of our entire Supreme Court—after the loss of an election — is inconsistent with principles of citizen-based government. Earlier this year, eight months before the 2016 election, U.S. Supreme Court Justice Antonin Scalia passed away. After his death, President Obama nominated Judge Merrick Garland, the Chief Judge of the D.C. Circuit Court of Appeals to fill the seat. Republicans in the U.S. Senate refused to act on the nomination before the presidential election because it violated the fundamental principle of citizen-based government.

Here, the court-packing rumors turn the principle of citizen-based government on its head. The framework of our highest court would be altered after the election to allow an outgoing Governor to appoint two new justices to skew the political balance of our Supreme Court. Whether you are a Democrat or Republican, this move is a slap in the face to the electorate, violates the principles of judicial independence and citizen-based government and delegitimizes our Supreme Court. Is this the path North Carolina really wants to go down, or is it time for politics to get out of our judiciary?