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North Carolina’s court of supreme do-overs


North Carolina’s court of supreme do-overs

Mar 29, 2023 | 2:00 pm ET
By Steve Ford
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North Carolina’s court of supreme do-overs
High on the granite façade of the North Carolina Supreme Court’s headquarters across from the Capitol in downtown Raleigh is engraved what can be seen as an inspiring and enduring promise: “Law and Justice.”

These days one has to wonder whether a footnote should be added, along the lines of “That Was Then, This Is Now.”

The high court, freshly reconfigured with a 5-2 Republican majority on the strength of November’s elections, is well on its way toward countermanding three big decisions reached by the Democrats, who had held a 4-3 edge.

These are decisions that go to the heart of what “law and justice” must mean for the state’s residents. Two of them aim to uphold voters’ rights to participate fully and freely in elections, in districts free from extreme gerrymandering and without unnecessarily burdensome ID rules.

The third – an outgrowth of nearly 30 years of litigation in the so-called Leandro case – is meant to secure public school students’ opportunity to gain a meaningful, useful education, as the state constitution has been found to guarantee.

Now, with the court’s two new justices barely having had time to settle in, Republicans who control the General Assembly are being allowed to reargue cases they lost just weeks before.

The court appears receptive to the notion that it can do nothing to curb extreme partisan gerrymandering that virtually locks in GOP majorities in the legislature and among the state’s U.S. House members.

It is clearing the way for a photo ID requirement for voters despite evidence that the effect is to discriminate, unconstitutionally, against Democratic-leaning African-Americans.

And it has hit pause on a court-ordered transfer of funds intended to uphold every student’s right to a “sound basic” education – a modest guarantee, perhaps, but one that would give each young person a decent leg up toward a successful and fulfilling life.

It was only after many years of legislative indifference veering into resistance – from both parties, it must be said – that the Supreme Court last year agreed with a trial judge that when it came to such foot-dragging, enough was enough. A plan devised under court auspices to bring all the state’s school systems, even those in poor, rural counties, up to an acceptable quality level would have to be funded, like it or not. And Republican legislators definitely didn’t like it.

Their objections amount to a tangle of ideology, partisanship and turf protection. Even before the current right-wing tendency to vilify public schools as dens of gender-bending and race-obsessed “wokeness,” many Republican politicians had little use for educators and their entirely justified demands for higher pay and better working conditions. Why, those teachers who’ve been known to march in protest through the streets of Raleigh might even prefer to have Democrats running the show at the Legislative Building!

Spending say-so

Even if the pendulum has shifted slightly in their favor, teachers in recent years have sustained insult after injury in the form of disrespect for their professionalism and of meddling in how they’re allowed to do their jobs. Legislators have prioritized support for charter and non-public schools, supposedly to promote healthy competition but in reality undercutting resources for schools that must do their best to educate students who attend not out of choice but necessity.

That’s the partisan, even cultural, context. But when top legislative Republicans frame their arguments to the Supreme Court, their context is one of power – their jealously guarded power of the purse.

Only the General Assembly can legally appropriate state funds, they say, citing a clause in the state constitution assigning that prerogative. What they refuse to concede is that the courts, after finding that an expenditure is necessary to uphold a constitutional right, can require it to be made without legislative approval.

The previous Supreme Court invoked its authority to sort out conflicting constitutional claims – and its responsibility as the guardian of people’s rights – when it ruled that funding for an eight-year school improvement plan must proceed.

The sum immediately at stake was $1.75 billion to cover the plan’s second and third years, although a trial judge determined that about half that amount was provided under the state budget. The ongoing dispute involves the remaining chunk of change, how large it now is and whether there’s a legal obligation to provide it.

With the five Republican justices taking the legislature’s side, the court’s majority on March 3 put on hold a requirement handed down by their Democratic predecessors that the money should be transferred outside regular appropriations channels. The ruling allows the court to reconsider whether an official whose title is the state controller should be forced to make the transfer. In the meantime, he won’t have to make it.

The controller’s objections first were raised by a Republican who retired last year. Strangely enough, those objections are being echoed by the new controller appointed by Democratic Gov. Roy Cooper, who favors the increased spending. Both controllers have argued that to follow the previous court’s order and distribute the money might somehow be illegal – a curious position, given that the high court itself is supposed to have the final say on what the law does and doesn’t permit.

Costly delay

Justice Anita Earls, one of the court’s two remaining Democrats and a member of the quartet that had ordered the funds to be made available, filed a pungent dissent to the March 3 ruling (see page 5). She was joined by her Democratic colleague Michael Morgan.

“The Controller cannot legitimately request a ‘do over’ with a newly constituted Court in order to obtain a different result,” Earls wrote. “And even more importantly, this Court cannot legitimately allow such a procedure.”

Going along with that request, she said, “strikes another nail in the coffin for the rule of law. Our legal system is based on the premise that this Court’s orders and opinions will be treated as final and binding interpretations of North Carolina law and its constitution.” The same critique, of course, applies to the court’s rapid about-face in the gerrymandering and voter ID cases.

But even while Earls ripped the new court’s decision on procedural grounds, she also re-emphasized what continues to be at stake in the battle over school funding. Glancing back at the long history of that battle, which dates to a lawsuit filed in 1994, she wrote:

Unfortunately, we have waited much too long to see whether the State will abide by its constitutional mandate to provide our children, including at-risk children struggling in under-resourced schools, with a basic, sound education. … Not only is it true that justice delayed is justice denied, but denying adequate educational opportunities ‘entails enormous losses, both in dollars and in human potential, to the State and its citizens’ [as the court previously stated]. If our Court cannot or will not enforce state constitutional rights, those rights do not exist, the constitution is not worth the paper it is written on, and our oath as judicial officers to uphold the constitution is a meaningless charade.“

With its new, conservative majority, the court in fact now displays a broad reluctance to recognize constitutional rights that were articulated by a majority of justices in the past, based on their interpretation of what the state constitution requires even when it doesn’t say so explicitly.

That highlights the difference in philosophy separating our state’s judicial conservatives from moderates. When it comes to the challenge of improving North Carolina’s public schools so that all students can be properly served, there’s ample reason to think that judges and legislators committed to upholding those students’ rights are the ones more likely to advance the public interest.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it at www.ncchurches.org.