Court packing remains unclear, but damage to public confidence in politics, courts does not
With less than 24 hours to go until the Governor’s open-ended special legislative session, the public remains in the dark about whether lawmakers will make a power grab at the North Carolina Supreme Court by adding two justices.
Lawmakers have called the potential court-packing plan a media rumor, but no one has disavowed it as a possibility, creating concern among officials, advocates, residents and even outsiders keeping an eye on what judicial precedent it could set.
“What the courts have is public confidence,” said Alicia Bannon, who serves as Senior Counsel in the Brennan Center for Justice’s Democracy Program. “Something like this could do real damage to the state judicial system. I think this is obviously part of a partisan battle, but the stakes are also quite high for the integrity of the court system.”
Bannon leads the Brennan Center’s fair courts work. She said last week that the court-packing move appears to be part of a broader, national trend in state courts, but what’s going on in North Carolina is more “overtly partisan” than other examples because of the timing.
“The people of North Carolina just spoke, and now we’re seeing an effort to kind of roll that back,” she said.
There have been efforts to expand state Supreme Courts in Florida, Michigan, South Carolina, Alabama, Indiana, Nevada and Iowa. The most recent successful bids to do so have been in Arizona, which expanded its justices from five to seven, and in Georgia, which its justices from seven to nine.
Unprecedented, but not new
Adding to the Supreme Court would be unprecedented for North Carolina, but not unheard of. Lawmakers entertained adding two justices to the Supreme Court in 2013 as a provision to Senate Bill 10, which would have allowed Gov. Pat McCrory to fire sitting members of several key oversight and advisory boards.
The provision to expand the high court would have allowed the newly elected governor to appoint two new justices without an election, but it was dropped from the bill after failing to gain support in the House.
Sen. Floyd B. McKissick Jr., D-Durham, Granville, said there’s always been discussion over the years about changing the composition of the court and packing it with members of a certain party or with a certain philosophical bent.
“It’s never necessary to do unless it’s related to workload,” he said. “It can never be done for political gain. It completely erodes the public trust and confidence in the court system and it looks rigged when you do that.”
McKissick serves on the Public Trust and Confidence Committee, which is part of the North Carolina Commission on the Administration of Law and Justice and was convened by current Supreme Court Chief Justice Mark Martin.
Martin has declined to comment on the topic of expanding the Supreme Court because it’s hearsay, according to spokeswoman Sharon Gladwell.
McKissick, though, said that the committee spent about 40 minutes of its last meeting discussing the possibility of court packing and decided it ought not be discussed at all unless related to workload.
The committee passed the following resolution as a result: “The PTCC recommends that the Commission issue a statement opposing the expansion of our Supreme Court unless the NCAOC requests additional justices to meet workload demands.”
The current workload does not justify a court expansion. In 2015 and 2016, each Supreme Court Justice wrote an average of six opinions per year, compared with an average of about 40 opinions per year from 1943 to 1947 (a situation ultimately alleviated with the creation of the NC Court of Appeals).
“Clearly this undermines the trust, confidence and credibility of the court,” McKissick said. “The voters have spoken. We need to understand that Mike Morgan won the election by a very comfortable margin, and he deserves to serve on that bench.”
He said he didn’t know the likelihood that a bill to add justices would be passed, and that he’s heard more speculation from Democrats than Republicans about what will happen.
“But that doesn’t mean they won’t rule a bill out,” he added. “They tend to do it at the last minute.”
What about the Democrats?
Senate leader Phil Berger’s office has not responded to multiple emails and phone messages about the topic of expanding the Supreme Court, but reportedly released the following statement to the News and Observer:
“The only confirmed issue for next week’s special session is taking up Gov. McCrory’s disaster relief proposal. We are also carefully reviewing what Gov.-elect (Roy) Cooper did as Senate Majority Leader in 2000 and prior.”
In 2000, the Democrat-led legislature added three seats to the North Carolina Court of Appeals, increasing the number of judges from 12 to 15. The court originally had six judges and was expanded for the first time to nine judges in 1969 and then to 12 judges in 1977.
Some opponents have cited the Court of Appeals additions as bids by the Democrats to stack the courts, but advocates say the additions were justified as the court’s workload increased.
Ferrel Guillory, a state politics expert and director of the Program on Public Life at the University of North Carolina in Chapel Hill, said that adding appeals judges cannot be compared to adding Supreme Court justices because the judicial systems don’t work the same way.
“The difference between the Supreme Court and the Court of Appeals is that the Court of Appeals breaks into three-judge panels, and the Supreme Court is en banc – meaning all justices hear all the cases,” he said. “The court-packing – if it was to happen in the Supreme Court – would affect every case.”
The Democrats also didn’t make a bid to pack the Supreme Court when they had the chance. The party controlled the Governor’s Office and the House and Senate for most of the first decade of the 2000s, while the Supreme Court was Republican led, sometimes by a 4-3 margin.
Even if a plan to pack the Supreme Court doesn’t happen at the session, the ongoing trend of entertaining the idea is a concern in and of itself, according to experts.
“If the General Assembly is willing to change the number of justices on the court, I think it should raise real questions in the legal community about what to expect from the court in the future,” said Joseph Blocher, a professor at Duke Law. “We like to think of courts as being as really non-partisan as possible, but adding two justices in these circumstances would really throw that into question.”
Blocher said he doesn’t think it will happen “because it’s so outrageous,” but that it was worrisome that more people hadn’t spoken out against it.
Melissa Price Kromm, Director of North Carolina Voters for Clean Elections, said it’s telling that lawmakers aren’t talking about the issue.
“Far too many have stayed silent,” she said. “The M.O. of this Republican legislature has been discussion behind closed doors and passing bills at the last minute.”
She said that fair and impartial courts are one of the nation’s greatest accomplishments and that a move to pack the court completely erodes the public’s confidence in democracy.
“Power grabs like this don’t give us justice, they give us injustice,” Kromm said.
McCrory’s office and House Speaker Tim Moore’s office have not answered multiple email and phone messages seeking comment about expanding the Supreme Court.
Although McCrory called for the special session with language that leaves taking up other measures completely open, he released an outline Monday that states the legislature will look at five areas related to disaster recovery.
When asked about court-packing last week, Gov.-elect Cooper said he believes the legislature should focus on helping North Carolinians suffering from the aftermath of the hurricane and wildfires.
Other Council of State members have also urged McCrory to keep the special session on the topic of recovery only.
Guillory said he suspects a large swath of North Carolina voters won’t see adding a justice or two to the Supreme Court as immediately relevant to their lives, but as more of another example of “what they don’t like: power plays in politics.”
“This is a case not of if (the legislature) could do it, but if they should,” he said. “Doing it would deal another blow to public confidence in politics.”