This story originally published online at NC Policy Watch.
Republicans took control of the North Carolina Supreme Court last week, winning two seats and flipping the court from a 4-3 Democratic majority to a 5-2 Republican one.
The Republican majority is guaranteed through at least 2028. That could mean more gerrymandered maps that favor the GOP, a reversal of the landmark Leandro ruling that is currently on course to provide a massive increase in education funding across North Carolina, and further restricted access to abortion.
Less clear is the impact on criminal justice. There are so many topics within the justice system — policing, prison conditions and asset forfeiture, to name a few — that they span the ideological spectrum and can cross political party lines.
“When you talk about criminal justice issues, you’re talking about an incredibly vast area of the law. Different judges and justices might think one way about, perhaps, a sentencing issue, and then they might think a very different way about, perhaps, a Fourth Amendment search and seizure [issue,”] said Daniel Siegel, deputy legal director of the ACLU of North Carolina.
“Just because they’re Republican doesn’t mean that they’re going to be bad on criminal justice,” said Ben Finholt, director of the Just Sentencing Project at Duke Law’s Wilson Center for Science and Justice.
Others aren’t so optimistic.
“I feel like progressive criminal justice reform has been pushed back years,” said Kerwin Pittman, a member of the governor’s Task Force for Racial Equity in Criminal Justice and the director of policy and program at Emancipate NC. “It kind of feels like the door to the Supreme Court was kicked down.”
Experts interviewed for this story identified a slew of criminal justice matters they were concerned would be impacted by the Republican-dominated Supreme Court — the further criminalization of abortion, racial discrimination in plea deals, restricting incarcerated people’s ability to bring their cases to the high court.
But many fear two specific issues being reversed: racial discrimination in jury selection and limits on the amount of time a child must spend incarcerated before they are eligible for parole — an alarm sounded by Billy Corriher two months ago in an article in Facing South.
The high court’s Democratic majority has issued historic rulings on life sentences given to children and racial discrimination in jury selection. But each of the court’s Republican justices dissented in those cases. Dawn Blagrove, an attorney and executive director of Emancipate NC, worries the rulings could be in peril under a new Republican majority.
“I think that the conservative arms of our courts have shown us through their dissents of late that once they have the power to issue decisions, that are strongly partisan and strongly right-leaning, they will,” Blagrove said. “And I think that we are in store for some really tumultuous times.”
A potential to undo Democratic “judicial activism”
The court’s Chief Justice, Paul Newby, issued one of those fiery dissents in a case involving a 17-year-old given two consecutive life sentences for robbing an acquaintance while his friend murdered two people in the next room with a gun he’d borrowed from the teenager. The opinion set a 40-year ceiling on parole eligibility for people convicted of a crime they committed when they were children. Once they were imprisoned for four decades, the ruling states, they must be considered for parole.
In his dissent, Newby accused his colleagues of “judicial activism.” He charged that the court’s Democrats were legislating bad criminal justice policy from the bench, brushing away decades of North Carolina precedent and ignoring constitutional provisions to bring North Carolina in line with international law and “evolving societal standards.” He then turned to “rising juvenile crime,” a major Republican talking point in the midterm elections, arguing that the Democrats’ ruling “removes any incentive to limit the murder of witnesses at the crime scene.”
Blagrove is concerned that case will be revisited now that the court’s balance of power has shifted.
“We are one of the last states in the country to really effectively address juveniles who are sentenced to life without the possibility of parole and to determine whether or not children should have the capacity to be irredeemable,” she said. “One of the things that we have seen the conservatives on the court during this session say over and over again is that they are troubled by activist judges. However, I think that what we are going to see over the next term, with the new balance of our court, is… probably some of the most activist judging that we’ve ever seen as a state.”
A return to the status quo on jury selection?
Republicans have also dissented in cases involving racial discrimination in jury selection. In a 1986 decision, the U.S. Supreme Court ruled in Batson v. Kentucky that prosecutors picking a jury in a criminal case could not use peremptory challenges — dismissing jurors without valid cause — to exclude prospective jurors solely on the basis of race.
“For years and years and years, our Supreme Court never found a Batson violation, ever. We were the only state in the South where that was true,” said Mary Ann Tally, who was a Superior Court judge from 2001 to 2018.
And then it did, in a May 2020 decision that gave lower courts guidance on how to better assess racial discrimination claims in jury selection.
Earlier this year, the Supreme Court found another Batson violation in a prosecutor’s use of peremptory strikes to remove two African American prospective jurors from the jury pool in a trial of Christopher Anthony Clegg.
The Republicans on the court disagreed. Associate Justice Philip Berger Jr. wrote the dissent, arguing that the majority “reaches its desired result by distorting precedent and mischaracterizing the record and the trial court order.”
Accusing it of reliance on “cherry-picked facts,” Berger wrote that the majority opinion mentions one of the jurors more than 30 times, “but they do not analyze or even consider the legitimate reasons for her strike because doing so destroys their narrative.”
While Berger acknowledged with a U.S. Supreme Court ruling which held that a jury selection free of racial discrimination is integral to ensuring equal justice under the law, he said, “This Court is not equipped, nor is it our role, to find facts and weigh evidence.”
Those two decisions didn’t draw any support from Republican justices, raising the fear in some places that a Republican-dominated bench will revert to the status quo and not find any Batson violations in cases that reach the high court.
“I certainly hope we don’t go back to the way it was because it is very damaging to exclude people of color from juries. It’s damaging to our system of laws. It’s damaging to our system of justice,” Tally said. “It is very important to the credibility of the courts and our justice system, that Black people not be excluded simply because of their race.”
Precedent and neutrality
Despite the dissents, the majority opinions were what established precedents, and precedent is what both binds the lower courts and potentially insulates the rulings from being reversed.
“As a general matter, State Supreme Court precedent is given great weight even by future panels of the state Supreme Court,” Finholt said. “So, having an ideologically different court does not mean that the Constitution or its meaning have changed.”
The candidates’ campaigns might also protect the rulings, at least initially, Siegel said. Democratic and Republican candidates alike spent the campaign talking up the importance of nonpartisanship on the court. The victors, Trey Allen and Richard Dietz, each said judges on the high court must put aside their political views to decide cases fairly.
“For a newly constituted court to come in and kind of change the law on a dime, that is not really good for the public’s perception of the court as non-political if the law can change just as quickly as the membership changes,” Siegel said.
On the campaign trail Dietz and Allen each made much of the importance of fairly and impartially deciding the law. But professing a doctrine of neutrality is in and of itself a political decision, Blagrove said, because neutrality upholds the status quo that maintains white supremacy.
“These neutrally written laws and neutrally drafted opinions are incredibly harmful, and they’re not in actuality, or in practice, neutral,” Blagrove said. “They are deeply, deeply biased against Black, brown and poor people.”
To illustrate how systemic and institutional racism are upheld by the courts, Blagrove pointed to a Court of Appeals ruling issued two months before the election involving a Black mother who lost her kids to the foster care system after she’d been accused of abuse and neglect.
Chief Judge Donna Stroud, who also just won re-election as a Republican candidate, acknowledged in her opinion that several civil rights organizations had filed briefs in the case focusing on the role of race in the termination of parental rights, the negative and disproportionate impact of the child welfare system on people of marginalized races, and how the child welfare system’s response to domestic violence can exacerbate children’s trauma.
Lower courts had excluded testimony from an expert about racial bias in the child welfare system, a decision Stroud affirmed in her opinion.
“Statistics or studies regarding outcomes for children in non-kinship homes or disproportionate impacts on ‘marginalized racial groups’ may be of great assistance to the policy-making branches of government when establishing the laws and procedures in child welfare cases generally, but may have no direct relevance to a particular child or family,” she wrote.
In a series of sentences strikingly similar to the rationale offered by Berger in his dissent in the Clegg case, Stroud wrote that the court did not discount any of the concerns raised by the briefs involving the disproportionate racial impact of the welfare system, “but as an appellate court, we can address only the issues presented by the facts of this case and the law as established by the General Assembly and prior case law. The trial court’s job, ultimately, is to make hard decisions based upon the evidence presented, with the best interests of these two young children, Mark and Ken, as its primary consideration. And our job, as an appellate court, is to determine if the trial court did that job correctly, in accord with the law.”
And so, Blagrove said, despite an acknowledgement of the inherent racial issues within the child welfare system, the Court of Appeals ruled that its hands were tied.
As Newby and Berger had said in their dissents, Stroud was saying that the courts were not the place to make those changes sought by the advocates. But that is exactly the place from which this change must spring, Blagrove says, because if not there, then where?
“If the courts aren’t the place for it, there is no place for it, which means the courts have to be the place for it,” Blagrove said.
Blagrove’s concerns suggest a larger truth: that what is just “following the Constitution” to some judges is unacceptable to others. And it is unacceptable because of a confluence of factors, including personal experience and a cultural understanding of the issues that are raised in the courtroom.
“When we look at the pedigree of the people we have just elected to our highest court in North Carolina, what we will see for the most part are white men who have lived very similar lives — very isolated, very homogenous — who lack the necessary lived experience to have a 360-perspective on most of the human rights and civil rights cases that come before them,” Blagrove said. “And unless they are intentional and deliberate in expanding their worldview, their worldview is very, very narrow, and as a result, you get a very narrow, single-minded interpretation of the law, which is the exact opposite of what should be happening from the bench.”
After all, judges do not become impartial robots when they put on the robe. At least that’s not how it went for Gregory Weeks, who was a Superior Court judge from 1989 to 2012. A Black man who was a public defender before sitting on the bench, Weeks recalled a few of the formative experiences of his time as a judge: How he was pulled over in Cumberland County shortly after getting his judicial license plate; how officials in rural county courthouses would tell him — as he was wearing his judge’s robe — he couldn’t enter certain rooms because only court personnel were allowed in there; the extra efforts he would take to question prosecutors when they’d offer different plea deals for white defendants charged with the same crimes as Black defendants.
All those experiences impacted his thinking on the bench.
“The system is partisan,” Weeks said. “Bias plays a role in the system. In my view, the overwhelming majority of instances it’s implicit or unconscious bias. But there are also instances where it’s overt.”
Blagrove said Emancipate NC will continue fighting that bias, even with a Republican-dominated Supreme Court. Their fight is a long one, she said, an attempt to create “legal pathways to ends that are just and fair.”
This election might make that harder, Blagrove said, “But we also realize that if somebody isn’t willing to fight the hard fights, then we never win the good wins. We will not be deterred by an unfriendly court.”
Support independent local journalism. Join the INDY Press Club to help us keep fearless watchdog reporting and essential arts and culture coverage viable in the Triangle.
Comment on this story at email@example.com.