New NC Supreme Court's impact will extend beyond what we can see

We might have to wait until spring to see clear evidence that the new N.C. Supreme Court has shifted the state’s legal and constitutional landscape.

Though two new justices took their oaths of office on New Year’s Day, the high court will wait until Jan. 31 to hear its next set of oral arguments. The court will release its next set of opinions on April 6.

That’s when we could learn how the court’s new 5-2 Republican majority contrasts with the 4-3 Democratic court that delivered its last rulings in December.

It’s likely that opinions emerging from the new court will differ in style and substance, especially on high-profile cases that have divided Democratic and Republican justices in recent years.

But the new state Supreme Court is likely to have a larger impact than its written opinions can convey. A news item from the closing days of 2022 helps explain why.

The Associated Press reported on Dec. 30 that a “North Carolina abortion provider, medical professionals, and an abortion-rights group have withdrawn their 2020 lawsuit challenging several state laws restricting and regulating the procedure.”

Abortion supporters dropped their suit during Christmas week, according to AP. They had been challenging laws such as a 72-hour waiting period for abortions and a requirement that only a “qualified physician” can perform the procedure.

Neither the case’s lead plaintiff, Planned Parenthood South Atlantic, nor supporters from the American Civil Liberties Union responded to AP’s request for comment.

This observer won’t pretend to speak for either group. But it’s easy to speculate that one factor driving the dismissal was changes within the N.C. Supreme Court since abortion supporters first filed suit.

Prior to the 2020 election, Democrats held a 6-1 majority on the state’s highest court. Left-of-center activists disappointed in the Republican-led General Assembly’s approach toward abortion policy might have expected a friendly response from a court dominated by Democrats.

The numbers looked less encouraging for left-wing partisans after November 2020, when Republicans swept statewide judicial elections.

Yet Democrats still maintained a 4-3 state Supreme Court majority. And the court’s remaining Democrats used that advantage. Over Republican colleagues’ repeated objections, high court Democrats decided that two popular state constitutional amendments could be subject to nullification. They invented a new state constitutional ban on partisan gerrymandering and threw out lawmakers’ statewide election maps.

They struck down North Carolina’s 2018 law mandating photo identification for voters. They ruled that a judge could bypass the General Assembly to order spending hundreds of millions of additional taxpayer dollars on education programs.

In ruling repeatedly against the people’s representatives in the General Assembly, Supreme Court Democrats earned a nickname from John Locke Foundation CEO Amy Cooke. She labeled them “The Usurper Four.”

Now only two of the four remain on the bench. They are outnumbered by five Republicans.

While it’s likely that most, perhaps all, of those Republican justices personally support some government restrictions on abortion, what is more relevant in the legal context is their approach to constitutional law.

Each supports determining what the law says, rather than what they would like it to say. Republican justices are likely to defer to the General Assembly’s decisions about making the law, except in cases when lawmakers commit clear constitutional violations.

That’s bad news for abortion supporters who want state courts to strike down laws they oppose.

The N.C. Supreme Court will never have to rule on the 2020 abortion lawsuit. It’s unclear whether abortion supporters will want to take a chance on litigation again in the next two years. Unless they can point to clear constitutional violations within the General Assembly’s actions, they’re unlikely to win.

Partisans for other left-of-center causes face the same predicament. If they don’t like the General Assembly’s approach to election laws, tax policy, parental school choice, or other issues in the year ahead, they won’t have the luxury of running to state courts for left-leaning decisions.

Even when leftists can find a sympathetic trial judge, appeals could lead to precedents that solidify the General Assembly’s power over the lawmaking process. Those precedents could leave litigious partisans in an even worse constitutional position than they face today.

That’s why we shouldn’t be surprised to see a drop-off in politically motivated state lawsuits in the new year. Critics of the Republican-led General Assembly could be less likely to take legal action, especially when their complaints are destined to reach a high court dominated by constitutional conservatives.

The new state Supreme Court will have a chance to make its mark with its decisions. But it could exert its greatest positive impact by discouraging costly, time-consuming, misguided lawsuits before they start.

Mitch Kokai is senior political analyst for the John Locke Foundation.