It didn’t take long for the new Republican majority on the North Carolina Supreme Court to reveal itself as a political caucus.
The seven-member court’s five Republican justices agreed on Friday to rehear redistricting and voter identification cases that the court’s previous 4-3 Democratic majority had decided only months ago.
One of the previous court’s rulings rejected redistricting maps as illegal gerrymanders. The other found that a voter photo ID law passed by the GOP-controlled General Assembly was unconstitutional. The cases will come back before the court in mid-March.
The court’s decision to rehear these cases diminishes the weight of court precedent and breaks sharply from the court’s historic pattern. Justice Anita Earls, a Democrat, said in a blistering dissent that since 1993 the court has received 214 rehearing petitions, but only two were granted. Now the court agreed to two rehearings barely a month into its new term.
Rehearings are typically granted when crucial evidence was not considered in the original hearing. That does not apply here. The court is reopening the cases that affect the state’s governance and the rights of voters simply because Republican legislative leaders disagree with the rulings.
Michael Gerhardt, a University of North Carolina Law School professor and an expert on constitutional law, said the court’s decisions to grant the requests for rehearings were plainly based more on politics than the law.
“Sadly, the Court is taking these unusual steps solely because there is a new majority, which seems bent on making blatantly political, not legal, decisions,” Gerhardt said. “The original decisions involve perfectly reasonable constructions of state law, but the new majority is keen on delivering different outcomes to the Republican Party.”
Although the court’s Republican justices can freely grant the rehearings, they will face a far greater challenge in refashioning new rulings that fit the outcomes desired by Republican leaders. The rulings were well grounded in the constitution and powerfully expressed.
The proper course would be for Republican lawmakers to draw new district maps and rewrite the voter ID law. If the revised laws are challenged, let them go through the courts again. Instead, Republican lawmakers sought a legal shortcut by asking to have the rulings reconsidered and the court’s majority dutifully obliged.
The stakes in these two cases are high, but on an even more momentous matter — the credibility of the court — the verdict is already in. That the Republican justices are willing to consider tossing court precedent to further political goals is a blow against the institution they were elected to serve. They are not merely politicians in robes. They are politicians in red robes.
Republicans will argue that the court’s majority is not practicing politics from the bench, but rather they are correcting such practice. They say the Democratic majority on the previous court accelerated the hearing of the two cases to put a liberal spin on the rulings before the Republican majority elected in November took over in January.
In truth, the Democratic majority moved quickly because the effect of Republican politicization of the courts has become clear and the Democratic justices worried that cases would not get a fair hearing once Republicans took control of the Supreme Court. Now even Democrats are stunned by how quickly that fear has been realized.
In her dissent, Earls rightfully said that the court’s decision to grant the rehearings goes beyond the merits of the two rulings.
“Going down this path is a radical departure from the way this Court has operated, and these orders represent a rejection of the guardrails that have historically protected the legitimacy of the Court,” she wrote. “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.”
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