Supreme court has seen change, but 4-3 splits are rare

Those who expected a string of partisan 4-3 decisions from the N.C. Supreme Court this year might be disappointed. The court’s four Democratic justices have split with its three Republicans just two times in 76 cases decided so far this year.

Yet a side-by-side comparison between this year’s high court rulings and those handed down in 2020 shows signs that the new court has seen a philosophical shift.

Voters sent a clear message in last year’s statewide judicial races. Republicans won all eight contests on the ballot, including three seats on the N.C. Supreme Court. The elections shifted the court’s partisan balance from 6-1 in favor of Democratic justices to a much closer 4-3 Democratic majority.

Just as important, perhaps, was the change in the chief justice’s chambers. Paul Newby, the lone Republican on the 2020 court, edged appointed Democrat Cheri Beasley by 401 votes out of nearly 5.4 million ballots cast statewide.

The 2020 court issued rulings in 173 cases. As is true in most years, the clear majority of decisions were unanimous. Some 113 cases (65%) produced no dissents. In 38 cases (22%), a single justice dissented. Another nine cases (5%) featured two justices disagreeing with the court’s majority. Eleven cases (6%) produced 4-3 splits. The court also stalemated 3-3 on one case, while a final case featured the six participating justices split into three pairs.

As the lone Republican, Newby also was the justice most likely to dissent. He voted with the majority in 76% of the cases. But he wrote 35 dissents, nearly twice as many as any other justice. (Anita Earls wrote 18. No one else on the court authored more than five.) Newby served as a case’s sole dissenter 23 times.

Now his role has changed. Newby has voted with the majority in 73 of 75 cases this year (discounting a 3-3 split). His 97.3% rate matches Democratic colleagues Sam Ervin IV and Michael Morgan for the highest percentage on the court. Like Newby, the court’s two new Republican justices — Tamara Barringer and Phil Berger Jr. — have dissented just twice. Their majority percentages are slightly lower only because they have not participated in every case.

In contrast, Democratic Justice Robin Hudson has dissented four times. Earls has dissented eight times, the most of any justice in 2021.

With a much closer partisan split, the 2021 court has issued unanimous opinions in 64 cases (84%). Another five cases (7%) have produced a single dissenter. In each of those instances, the lone dissenter has been a Democrat (Earls four times and Morgan once). One case has featured two dissenters (both Democrats). Five cases have produced 4-3 splits.

Of the 4-3 splits, only two cases have pitted the Democratic majority against the Republicans. One involved a dispute over termination of parental rights. The other, the State v. Corbett case decided March 12, featured a disagreement over granting a new trial to defendants convicted in a high-profile Davidson County murder case. The Democratic majority agreed to order the new trial.

In three other 4-3 splits, a single Democratic justice has joined with the three Republicans to form a majority. The April 12 State v. Meader case united the Republicans with Ervin. The four-justice majority agreed a criminal defendant had not put forward a convincing case that she was too intoxicated to take responsibility for her crime.

Last month Morgan joined the Republicans for 4-3 rulings in two cases. One dealt with parental rights. The other, State v. Hamer, foiled a driver’s attempt to use a legal technicality to win a new trial on a speeding charge.

There’s even more evidence that the current configuration of the N.C. Supreme Court features more unity than its 4-3 partisan makeup might suggest.

Newby has written five majority opinions this year. Each represented a unanimous court. Two deserve special recognition.

In Deminski v. State Board of Education, Newby wrote for a united court that local school boards could face lawsuits for failing to take action against bullying and harassment of students. That decision overruled a 2-1 split on the N.C. Court of Appeals. The Supreme Court’s opinion in Deminski thus represented more than just a rubber stamp of lower courts’ work.

In another case with a Newby opinion, Cheryl Lloyd Humphrey Land Investment Company v. Resco Products, the Supreme Court overturned a decision from a unanimous three-judge Appeals Court panel. The case featured a lawsuit targeting owners of an Orange County quarry. Plaintiffs took legal action because of comments made during a local zoning hearing. Newby highlighted the constitutional right to petition government as his colleagues all agreed to toss the lawsuit.

Numbers and anecdotes both show that the November 2020 election has produced change on North Carolina’s highest court. But the picture is more complicated than a 4-3 partisan split might suggest.

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