GOP could make court-packing move to keep control of Supreme Court
Published November 11, 2016
by Melissa Broughton, NC Policy Watch, November 11, 2016.
North Carolina voters have spoken, and they tipped the state Supreme Court to a Democratic majority Tuesday, but there’s a possibility that the Republican-led legislature will attempt to gain partisan control again before the end of the year by packing the court.
The high court is currently comprised of a Chief Justice and six associate justices. The races for open seats on the bench are supposed to be non-partisan, but outside money and special interests dominate campaigns, which are supported by the political parties.
In an election upset Tuesday, Democrat Mike Morgan won over Republican incumbent Justice Bob Edmunds, effectively flipping the court from a 4-3 Republican majority to 4-3 Democratic control.
There’s since been speculation that legislative leaders will force a vote in an emergency special session called to address Hurricane Matthew to add two additional associate justices in an effort to reestablish the Republican majority, a move that is allowed by the North Carolina Constitution.
Former Justice Bob Orr and Common Cause North Carolina Executive Director Bob Phillips both said Thursday that they’ve heard rumors about plans to expand the court.
House Speaker Tim Moore’s spokesman said Thursday that he would not be available for comment. Senate President Pro Tem Phil Berger’s spokespeople did not return a message for comment. Senate minority leader Dan Blue declined to comment.
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Orr, a Republican, said it’s not a new idea and that it also came up when the court was reviewing the constitutionality of a retention election as a back-up plan if Edmunds lost. He added that he believes the issue of redistricting is driving the push for partisan control, which isn’t fair to the court or the justices, who took an oath to be fair and impartial.
“If there’s this partisan expectation, it undermines the institution and it undermines the public confidence in the independence of the court,” he said.
Phillips said he thinks the possibility of such a move by the legislature speaks to the problem of money in judicial elections. He said that all the money spent is for control of the judiciary and when the side that spent all the money loses, the stakes are too high.
“That something like this could even be contemplated and even talked about is dangerous,” Phillips said. “It’s not the will of the voters.”
He said something like expanding a state’s highest court requires thoughtful, careful, lengthy discussion, and that this was more reminiscent of House Bill 2, which was rammed through legislation in a day, also in an emergency special session.
“That really is unhealthy,” he added.
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The state Constitution states clearly in Article IV, Section 6, “The Supreme Court shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justices to not more than eight.”
Gerry Cohen, former special counsel to the state legislature and an expert on state election law, said if that were done, it would require a bill to be presented and passed, then signed by current Gov. Pat McCrory. At that point, McCrory could appoint two justices to the bench who would serve until the 2018 election, when their names would be put on the ballot.
McCrory is trailing Roy Cooper in the governor’s race, which won’t be decided until later this month when all the provisional ballots are counted and a recount is likely held. If Cooper maintains his lead, McCrory’s term expires at the end of the year, creating a deadline for the unprecedented court-packing move.
It could absolutely be done in one day, the same way HB2 was passed, Cohen said. He added that if McCrory calls a special session to address the aftermath of the hurricane, it doesn’t bar the legislature from taking up anything else it wants.
“The governor’s call does not limit what the legislature can do,” Cohen said.
Democracy North Carolina Executive Director Bob Hall said such a move would go well beyond HB2 when it comes to dirty politics.
“That’s a pretty extreme measure,” he said. “It’s essentially changing the branches of government, trying to change the balance of power and manipulating the judicial system to be in control.”
Hall doesn’t have any personal knowledge of plans to increase the court’s justices but he said if it’s true, it would be hypocritical from a government that’s promised change and less corruption in the political process.
“It’s a bold move,” he said. “I would hope that anybody who voted for Trump and opposed to the rigging of the system and the political corruption would be screaming (over this).”
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Franklin D. Roosevelt proposed a similar court-packing bill in 1937, which was met with heavy criticism and then abandoned.
The current size of the U.S. Supreme Court is not fixed by the Constitution and is determined by Congress – a defect, according to University of North Carolina Law Professor Michael Gerhardt.
He said if the North Carolina legislature went through with adding justices to the court, it would mean state government could literally control the courts, and it would undermine the courts’ ability to be nonpartisan.
“It’s quite smarmy,” he said. “If the Democrats made a move like that, the Republicans would think it was the worst, partisan thing ever. It’s smarmy no matter who does it.”
Gerhardt said it’s the kind of a proposal that exposes the partisan battle that North Carolina presumably doesn’t want. If it happens, it could bring up a federal due-process challenge, he said, adding though, that it would likely be a Hail Mary doomed to fail.
Orr said the reason for a court expansion is just too transparent, and that it could not be justified by the court’s current caseload. He added that if it does happen, he hopes there is serious reflection about appointing justices who are resistant to partisan pressure.
“Whoever was appointed would be under incredible scrutiny from both sides,” Orr said. “The Constitution authorizes it, but I think there would be, certainly in the legal profession, a large backlash.”
