by Brenée Goforth
Communications Associate, John Locke Foundation
Election season this year has been like no other. Americans are still raising questions about the presidential race, and control of the US Senate hangs in the balance of one state, Georgia, as it goes into a runoff this year. North Carolinians are facing an additional election anomaly in the form of a judicial recount for chief justice of the state supreme court. This week, the John Locke Foundation’s Director of Legal Studies, Jon Guze, shares his analysis. Guze writes:
While the final outcome of the race for Chief Justice of the North Carolina Supreme Court isn’t official yet, it appears that the Republican candidates won all three open seats on the Supreme Court and all five open seats on the Court of Appeals as well. Even in a year in which Republicans did unexpectedly well statewide, that is a stunning result.
Guze breaks down why judicial makeups are important:
[T]hanks to the progressive “living document” judicial doctrine adopted in the second half of the 20th century, our Supreme 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 in North Carolina than the General Assembly and Governor combined.
A more closely matched court could mean more careful consideration from the bench. Guze writes:
[W]hat had been a 6 to 1 Democratic majority on the Supreme Court will now be a much more balanced 4 to 3.
The fact that the court will be more evenly balanced in terms of party affiliation, ideological commitments, and judicial philosophy will make it much harder for any of its members to impose their policy preferences from the bench.
Guze hypothesizes that this could impact future elections:
The fact that Republicans swept all the Court of Appeals races and are on the brink of sweeping all the Supreme Court races won’t be lost on the Democratic judges and justices who weren’t up for reelection this year. They will realize not only that North Carolina’s voters are paying more attention to judicial races than they used to do, but also that those voters don’t like what they’ve seen from Democratic judges and justices in recent years. Even if they are tempted to do so, therefore, that realization will make them think twice before putting policy preferences or party loyalty before of the letter of the law.