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!

Question 2. Even if all three Republican challengers were to win seats on the NC Supreme Court, what kind of balance can we actually expect with a Democratic majority, albeit a slightly weakened one?

While the NC Supreme Court can wield super-legislative powers, that doesn’t mean it has to do so. Over the years many members of the Court have renounced such powers and limited themselves to their constitutionally permissible role of applying state law and the state Constitution as they are written. And even justices who have not adopted textualism and originalism as their guiding judicial principles will often resist the urge to put their policy preferences or their party’s interests first and will, instead, uphold the written law.

I think our working assumption should be that all NC Supreme Court justices recognize their duty to apply the law without favor or fear. If they consistently fail to do their duty, we should do all we can to vote them out of office, but unless and until that happens, we should concentrate instead on reminding them of their duty and on showing them what it requires in the specific cases we care about.

Question 3. How much power is at stake in the race for the Chief Justice’s seat? If Paul Newby is the sole Republican to win in this election, what will the power dynamic of the court look like, and how will it play out in cases like the battle against Opportunity Scholarships, the impending court battle involving the voter ID amendment, etc.?

At the US Supreme Court, the Chief Justice can significantly influence the outcome of cases, not only by virtue of his moral authority as Chief, but also by controlling the process when the Justices meet in conference, by determining who will write the opinion when he is in the majority, and so forth. NC Supreme Court protocol, however, doesn’t give the Chief Justice any special power over how cases are processed, and while a Chief Justice who has served well and honorably for a long period of time undoubtedly has some moral authority over the other justices, in these days of extreme political polarization, I don’t think a newly elected Chief Justice Newby would be able to exercise much moral authority over the Democrats on the Court, at least not in the immediate aftermath of the election.

Question 4. The last time Opportunity Scholarships came before the Supreme Court, all Democratic judges voted against them. This time around, there will be a Democratic majority even if all three Republicans win their races. Is there any hope of one of the Democratic judges coming down in favor of school vouchers? Or are voucher supporters going to lose this issue either way?

In the new lawsuit challenging the constitutionality of the Opportunity Scholarship Program, the cards are obviously stacked against the program. When the program’s opponents tried and failed to get rid of it back in 2015, Justices Robin Hudson and Samuel Ervin and Chief Justice Beasley all voted against it. The first two will definitely be on the court when it hears the new challenge, and depending on when it is heard and whether she is reelected, Beasley may be, too. Justices Michael Morgan and Anita Earls will also be on the Court when it hears the case, and since both are Democrats, their ideological and party commitments will no doubt incline them to vote against the program.

Nevertheless, as I said above, unless they give us reason to doubt it, I think we should proceed on the assumption that all Supreme Court justices, regardless of party affiliation, are men and women of integrity. I don’t think it’s beyond the realm of possibility that one or more Democrats vote to uphold the program this time. Regardless of their judicial philosophy regarding statutory interpretation, all of the justices understand the importance of stare decisis and the reliance interests it protects, which means even a justice who voted against the program when it was originally challenged would think very carefully before overturning the previous decision on the matter.

When they hear the case, I would expect each and every justice to give due consideration to the reliance interests of the students and families already in the program and of the schools those students attend. Given how substantial those reliance interests are, it wouldn’t surprise me at all if some of them decide that protecting the well-being of those students and their schools takes precedence over advancing their own policy preferences and their party’s political advantage.

For more information see:

NCICL’s Jeanette Doran analyzes lawsuit challenging N.C. Opportunity Scholarships

HeadLocke No. 106: Opportunity Scholarship lawsuit highlights importance of N.C. Supreme Court