• A recent order by the North Carolina Supreme Court confirms that its four Democratic members may attempt to disqualify two of the court’s three Republican justices from a case seeking to nullify constitutional amendments voters approved in 2018
  • In addition to being unjustified and unprecedented, such a blatant act of partisan gamesmanship would seriously harm the court as an institution and permanently damage the reputations and electoral prospects of the justices involved
  • If successful, it would also effectively disenfranchise the millions of North Carolina voters who approved the constitutional amendments and elected the disqualified justices

In NAACP v. Moore, the NAACP’s state chapter seeks to nullify two constitutional amendments that were ratified by the voters in 2018. One of those amendments reduces the state income tax cap from 10% to 7%, and the other requiresphoto identification for in-person voting. The case is currently before the North Carolina Supreme Court, on appeal from a strongly worded decision by the North Carolina Court of Appeals upholding the amendents.

In July the NAACP filed a motion to disqualify two of the court’s seven justices, Justice Tamara Barringer and Justice Philip Berger, Jr. The NAACP argues that the former is disqualified “because she served in the General Assembly when the challenged legislation was adopted, she voted on the challenged legislation, and she was a defendant,” and the latter “because his father is a defendant in this case and thus Justice Berger is within a third degree familial relationship with a defendant” (emphasis added).

Invalid and unprecedented reasons for recusal

As far as I have been able to ascertain, no judge has ever recused himself or herself from a case simply because it involves a challenge to a law that was enacted when he or she served in the legislature, and there is a very good reason why judges should not generally do so. If such prior legislative service were to be accepted as a valid reason for recusal, Justice Barringer would have to recuse herself, not just from NAACP v. Moore, but from every case involving a law enacted while she served in the General Assembly, and the same would be true for any future legislator who goes on to serve in the judiciary.

As for Justice Berger, while it’s true that his father, Philip Berger, Sr., is named as a defendant in NAACP v. Moore, that is merely a formality. By long-standing convention, the names of the leaders of the two houses of the General Assembly appear in the caption when a state law is under challenge, but, significantly, each is named in his or her official capacity only. Neither is actually a defendant in the case; the defendant is the State of North Carolina. Legislative leadership can change during the litigation, and when that happens the new leader’s name is added to the caption, and the previous leader’s name is deleted. If the NAACP’s argument for Justice Berger’s recusal were valid, it would mean that, for as long as his father remains the leader of the Senate, he would have to recuse himself from every case involving a challenge to a state law regardless of when that law was enacted.

In short, if the NAACP’s arguments were valid, Justice Barringer and Justice Berger would be disqualified from hearing cases involving challenges to enacted legislation throughout their eight-year terms. Not only would that frustrate the will of the voters who elected Barringer and Berger in 2020, it would set a dangerous precedent that would be felt for generations.

Involuntary recusal is uncharted and dangerous territory

As I explained in my previous discussion of this case, if the NAACP’s request for recusal were being handled the way similar requests have been handled in the past, Justices Barringer and Berger would by now have declined to recuse themselves, the court would have denied the NAACP’s motion, and the case would be moving forward. Instead, a docketed hearing was cancelled last month and there were worrying reports that the four Democratic justices on the court—Anita Earls, Samuel Ervin, IV, Robin Hudson, and Michael Morgan—might take the radical step of granting the NAACP’s motion and forcibly disqualifying Barringer and Berger. Worse still, those reports were confirmed last week when the court issued an order requesting supplemental briefing on a list of questions pertaining to the involuntary recusal of Supreme Court justices.

That order confirms that court’s Democrats really are considering involuntary recusal—which is distressing—but it also suggests they are hesitant about actually doing it—which is reassuring. Involuntary recusal is uncharted and potentially dangerous territory, and the questions listed in the order make it clear that the court’s Democrats are well aware of that fact. They are clearly aware that:

  • there is no precedent for the involuntary recusal of a Supreme Court justice
  • there is no statutory authority for the involuntary recusal of a Supreme Court justice
  • the North Carolina Code of Judicial Conduct treats recusal as entirely a matter for individual judges to decide for themselves

Involuntary recusal threatens lasting damage to the Supreme Court and other devastating costs

The most the court’s Democrats could possibly achieve by forcing two of their fellow justices off this case would be to block the implementation of a tax cap that their party may never have occasion to breach and a voter ID requirement that prevents no one from voting and will have little if any effect on turnout. By comparison, the cost of such an act would be enormous and would greatly exceed any conceiveable benefit.

A cascade of damages to the court

Such a blatant act of partisan gamesmanship would do lasting damage to the court as an institution by tarnishing it in the eyes of the public, poisoning relationships amongst its members, and setting a precedent for additional involuntary recusals in the years to come. It would also permanently damage the reputations of the justices involved and significantly diminish their prospects for reelection.

A potential flood of litigation against hundreds of enacted laws

The whole point of disqualifying Barringer and Berger would be to make it easier for the court to nullify the challenged amendments. However, nullifying the amendments would require the court to reverse a forceful and well-reasoned decision by the North Carolina Court of Appeals and endorse a bizarre legal theory that flies in the face of both logic and precedent, which would further tarnish the court’s image. It would also put the legal status of hundreds of enacted laws in doubt and provoke a tsunami of litigation.

Two elections overturned and millions of voters disenfranchised

Moreover, disqualifying Barringer and Berger and then declaring the challenged amendments void would overturn the results of two elections and effectively disenfranchise the millions of North Carolina voters who ratified the constitutional amendments in 2018 and elected Barringer and Berger in 2020. That’s not something the voters are likely to forget or forgive.

It’s true, of course, that the Democrats have a long history of using litigation to accomplish in the courts what they are unable to accomplish through the electoral process. Nevertheless, it would be unseemly, not to mention extremely ironic, for them to do so for the sake of plaintiffs who claim to be promoting democracy and preventing disenfranchisement.

Like everyone else in these days of hyper-polarization, Justices Earls, Ervin, Hudson, and Morgan are no doubt feeling a great deal of internal and external pressure to act, not on the basis of established law and rational argument, but on the basis of partisan loyalty and partisan animosity. However, all four are intelligent, accomplished, and highly respected jurists who have risen to the top of their profession. Each has sworn an oath “to be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be established for the government thereof.”

If anyone can resist the partisan pressures that are currently deforming our political and personal lives, they surely can. Let us hope they do.