Four years ago, I posted a piece discussing the judicial races that were taking place at the time. Since it’s still relevant, I’m reposting the first part today.
A reporter recently asked me several questions about the North Carolina Supreme Court races. Because they’re questions of general interest, and because there’s more to be said in response to them than could be included in a news story, I’ve decided to provide expanded versions of my answers in this week’s Research Brief.
The reporter’s questions appear below followed by my answers. I prefaced those answers, however, with the following background information about how the roles of the U.S. Supreme Court and the state supreme courts have changed since the 1930s.
Under the separation of powers that applies to the federal government — and to the governments of the various states — the power to make laws was supposed to lie exclusively with the legislative branch, and the courts were only given the power to apply those laws, as written, to the cases and controversies that came before them. That’s why Hamilton characterized the judiciary as “the least dangerous branch.”
Unfortunately, beginning in the 1930s, the US Supreme Court adopted two new judicial doctrines that had the effect of transforming it into a super-legislature. The first of these was the so-called “tiers-of-scrutiny” doctrine, which gave the Court the power to choose which constitutionally enumerated rights it would enforce and which it would ignore. (See here for my explanation of the tiers-of-scrutiny doctrine and how it came to be adopted and for Justice Clarence Thomas’ scathing denunciation thereof.) The second was the so-called “living document” doctrine, which gave the Court the power to change the meaning of laws, including the Constitution, to reflect changed circumstances and changed sensibilities. (See here for my discussion of living document theory and Antonin Scalia’s long battle to replace it with an interpretive theory based on the original understanding of the statutory or constitutional text.)
These new doctrines weren’t adopted with the intention of giving the Supreme Court more power. On the contrary, they were adopted as a way to defer gracefully to the Roosevelt administration’s demand that the court stop interfering with its attempt to regulate the national economy. In the long run, however, they had the effect of making the US Supreme Court more powerful: more powerful than Congress and, in some ways, more powerful than the President himself. The former can pass legislation, and the latter can sign it into law, but it’s now up to the Supreme Court to decide what the legislation means and whether it is enforceable. In the 1940s and ’50s, most state supreme courts, including North Carolina’s, adopted similar doctrines with similar effects.
Question 1. What’s at stake this year in the N.C. Supreme Court elections? Why should voters care — especially when there is so much distraction coming at them from the presidential and gubernatorial races?
What’s at stake are, literally, the laws that will govern North Carolinians for at least the next four years. Voters need to remember that, like the US Supreme Court, the North Carolina Supreme Court has become a super-legislature. As a result of judicial doctrines adopted in the second half of the 20th century, the Court now has the power to uphold facially unconstitutional laws if a majority of the justices approve of them on policy grounds, to strike down facially constitutional laws if a majority of the justices disapprove of them on policy grounds, and to change the meaning of laws — and of the state Constitution — in order to advance the majority’s policy preferences.
As a result, a four-member majority of NC Supreme Court justices can wield more power over the law of the land than the General Assembly and Governor combined. Indeed, they can wield more power over the law of the land than the entire voting public that ratified our Constitution and each of its amendments.
People are generally aware that this has happened at the federal level. They know the US Supreme Court has become a super-legislature, and they know the members of that super-legislature are appointed by the president. That’s why they pay such rapt attention to the appointment process each time there’s a Supreme Court vacancy, and that’s also why many of them choose a presidential candidate largely on the basis of who the candidate is likely to appoint to the Supreme Court.
We’re lucky here in North Carolina. Unlike the US Supreme Court, the members of our Supreme Court aren’t appointed for life. Instead, we get to choose them through judicial elections. Also, after they have served one or more terms in office, if we’re dissatisfied with the way they’ve exercised their power, we can turn them out.
My advice to voters is this: When you go to the polls, or when you fill out your absentee ballots, remember that the NC Supreme Court justices you choose will be able to exercise more power over you and your family than any other candidates on the ballot. So choose wisely!
