by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Canon 3.A of the North Carolina Code of Judicial Conduct states, “On a motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge’s impartiality may reasonably be questioned.” Such motions are not uncommon, but they are seldom granted, and they are especially unlikely to be granted by the Supreme Court. A disqualified lower court judge can easily be replaced by another judge. There are only seven justices on the North Carolina Supreme Court, however, and they all sit in judgment on every case. If a justice recuses himself or herself, the case must proceed without a full panel of adjudicators.
A motion to recuse in the partisan gerrymandering case of Common Cause v. Lewis provides a good example. As the defendant in the case, the North Carolina General Assembly filed a motion to recuse Justice Anita Earls because, “One of the lead plaintiffs here, Common Cause, is a former co-litigant alongside a client of Justice Earls. Another, the North Carolina Democratic Party, is her principal campaign donor.” The legislature’s claim that “the public would have an objective basis to view Justice Earls as a sure vote against the General Assembly and for Plaintiffs” clearly had some merit. Indeed, given her prominent role in the Democrats’ campaign challenging the legislative maps that were drawn following the 2010 census, and given her many public statements about those maps, Justice Earls’ bias in favor of the plaintiffs in Common Cause v. Lewis was never in doubt. Nevertheless, Earls declined to recuse herself, the court promptly denied the General Assembly’s motion, and the case proceeded with a full panel of justices.
There have been worrying reports that things may go quite differently in another case arising out of the Democrats’ attack on the 2010 legislative maps that is currently before the Supreme Court. In NAACP v. Moore, the NAACP is asking the court to nullify two constitutional amendments that were approved by the voters in 2018, one that imposes a cap on state income tax rates and another that institutes a voter ID requirement for state and federal elections. The NAACP claims the General Assembly lacked the authority to submit them to the voters because some of its members were elected by districts that had been unconstitutionally gerrymandered.
Last month the NAACP filed a motion to disqualify Justices Tamara Barringer and Philip Berger, Jr. According to the NAACP, “Justice Barringer should be 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 “Justice Berger should be disqualified because his father is a defendant in this case and thus Justice Berger is within a third degree familial relationship with a defendant.”
It would be absurd to suggest that the NAACP’s case for the recusal of Justices Barringer and Berger in NCAAP v. Moore is more compelling than the case for Justice Earls’ recusal in Common Cause v. Lewis. Indeed, it is clearly less compelling. Unlike the evidence of bias cited in Common Cause v. Lewis, the evidence of bias cited by the NAACP consists of mere formalities: in Barringer’s case her former service in the General Assembly, and in Berger’s the convention of listing the current legislative leaders in the case caption when the actual defendant is the General Assembly. Furthermore, as the legislative defendants point out in their response to the NAACP’s motion, given her past involvement with the Democrats’ campaign against the legislative maps that were drawn following the 2010 census, the case for recusing Justice Earls from NCAAP v. Moore is at least as compelling as the case for recusing Justices Barringer and Berger.
If NAACP v. Moore followed the typical pattern exemplified by Common Cause v. Lewis, Justices Barringer and Berger would already have declined to recuse themselves, the court would already have denied the NAACP’s motion, and the case would be moving forward. Instead, according to the reports cited above, the four Democratic justices on the court — Anita Earls, Samuel Ervin IV, Robin Hudson, and Michael Morgan — are considering the radical step of granting the NAACP’s motion and disqualifying Barringer and Berger despite their unwillingness to recuse themselves.
This would be a blatant and unprecedented act of partisan gamesmanship, and its costs would far outweigh any potential benefits. It would do lasting damage to the court as an institution by tarnishing it in the eyes of the public, poisoning relationships amongst the justices, making future collegiality impossible, and setting a precedent for similar dirty tricks in the years to come. It would do permanent damage to the reputations of the justices involved and significantly diminish their prospects for reelection. And, because the NAACP’s reasoning would apply to any case involving a law enacted while Justice Barringer served in the Senate and, in Justice Berger’s case, to any case in which the State of North Carolina is a party, it would effectively disenfranchise the voters who elected Justice Barringer and Justice Berger.
Moreover, while the costs of engineering a 4-to-1 Democratic majority would be substantial, the costs of using that majority to nullify the challenged amendments would be substantial as well. Doing so 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. It would put the legal status of hundreds of enacted laws in doubt and provoke a tsunami of litigation. And it would effectively disenfranchise the millions of North Carolina voters who approved those amendments by large majorities.
All those costs would be incurred if the Supreme Court’s Democrats were to force their ideological and political opponents off this case, and for what? Simply to eliminate a tax cap that their party may never have occasion to breach and a voter ID requirement that has little if any effect on turnout? Surely Justices Earls, Ervin, Hudson, and Morgan wouldn’t make that tradeoff.