OPINION: The people have already spoken on who represents them on NC Supreme Court

By Daniel Gibson

Christmas came early for justice in North Carolina. Two days before Christmas, the North Carolina Supreme Court issued a one-page order on the issue of recusal. The NACCP had asked the Court to involuntarily recuse Justices Phil Berger Jr. and Tamara Barringer from NAACP v. Moore because Justice Berger’s father was a nominal defendant and Justice Barringer served in the legislature that passed the challenged legislation. Speaker Tim Moore and the other defendants argued the Court couldn’t involuntarily recuse justices but, if it could, it should also recuse Justice Anita Earls because she represented the NAACP at one time.

I wrote an amicus brief for UNC Law Professor John Orth arguing the North Carolina Constitution didn’t give the Court the authority to involuntarily recuse justices. At any rate, both Berger and Barringer recently stated they will not recuse themselves and reinforced their ability to be impartial. As a lawyer, I’m fond of disclaimers, so I need to say that the views I’m expressing here are mine and mine only. I don’t speak for Orth in this article.

The North Carolina Supreme Court’s Order begins by citing “the powers conferred by the North Carolina Constitution and General Statutes.”  The Order concludes that it will “assign [recusal] motion[s] to the Justice who is the subject of the motion[.]”  That justice’s determination “shall be final,” unless the justice refers the motion to the entire Court.

This is a vindication of North Carolina’s Constitution. The Court doesn’t choose its justices. The people choose the Court’s justices by electing them. In between elections, the people’s representatives in the General Assembly can impeach and remove justices. The state constitution also allows the General Assembly to create a Judicial Standards Commission to discipline or remove justices. The Court doesn’t have the power to remove justices—whether that’s from one case or from all cases. Giving the Court this power would call its impartiality into question.

If the Court had allowed involuntary recusal here, I doubt it would be the last time the Court faced this issue. The North Carolina Supreme Court has had 101 justices. Fifty-one of them had experience in the General Assembly. The Court will continue to have justices from the General Assembly. And Justice Earls isn’t our only judge with some connection to political non-profits who may come before the Court. Our judges and justices tend to have high-caliber experience. It’s no surprise that some may have represented the NAACP or the ACLU or the John Locke Foundation.

But the best reason for the Court’s Order on recusal isn’t in the NAACP’s brief, Speaker Moore’s brief, or any of the multitude of amicus briefs that came in on this issue. The best reason for the Court’s Order is the Order itself.

We live in an age of toxic political discourse and no-holds-barred politics. Unfortunately, the judiciary is not always above this. Conservatives and liberals have decried judges using verbal barbs against each other. Even Justice Brett Kavanaugh of the United States Supreme Court has complained about Justice Elena Kagan’s “misdirected rhetoric.”

So every North Carolinian should be proud of the Court—even, perhaps especially, if you don’t agree with the Court’s Order. Where other courts may trade barbs, our Court issued a simple, one-page order addressing a complicated issue. There was no divided court, no stinging dissent, and none of the sound and fury so many of us have come to expect from political cases in our nation’s highest court. I don’t agree with every decision our state Supreme Court makes. (I certainly don’t agree with the ones deciding against my clients). But I am supremely proud of our justices today.

That pride is the best reason for the Court’s Order. Our justices have proven that they can resolve contentious and complicated issues without bickering and barbs. Their ability to resolve this issue in a mature and wise way is the best proof that our justices are the best judges of whether they should recuse themselves. If they don’t feel competent to make that decision, they can hand the decision over to a competent court. And if we the people disagree with their decisions, we can vote them out.

That’s exactly how our Court should work—through public elections, not motions to recuse justices against their will.