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Court-hacking comes to North Carolina

By Joseph Blocher and Neil S. Siegel

Special to the Salisbury Post

Having lost its narrow majority on the North Carolina Supreme Court, the Republican-controlled General Assembly is reportedly considering tilting the court’s balance back by adding two seats and filling them with Republicans, which could have major implications for any litigation over redistricting and the gubernatorial election.

Such an attempt to thwart the will of the people would be disgraceful — political hackery, rather than ordinary politics, let alone political leadership. Voices of reason in both parties should speak out against any such “court-hacking” plan.

North Carolina voters chose Wake County Superior Court Judge Mike Morgan, a Democrat, over incumbent Justice Bob Edmunds, a Republican, for the single open seat on the state Supreme Court.

Within days, reports began to emerge from Raleigh that the General Assembly is considering expanding the court by two seats during a special session to deal with Hurricane Matthew relief. If this were done quickly enough, Gov. Pat McCrory could theoretically fill those seats, allowing Republicans to retain a court majority despite the election results.

We have seen this kind of thing before. In 1937, President Franklin Delano Roosevelt announced a plan to expand the size of the U.S. Supreme Court, which had repeatedly struck down major provisions of his New Deal economic recovery plan.

However, FDR’s proposal was widely opposed on the ground that it would undermine the proper functioning of the courts. The Senate Judiciary Committee – controlled by FDR’s own party – characterized the plan as “an invasion of judicial power such as has never before been attempted in this country.” Widely condemned as both unconstitutional and anti-constitutional, the plan stalled, and by the end of the year it was dead.

Changes to a court’s size should always be scrutinized—in fact, Republicans sued when Democrats added three seats to the NC Court of Appeals in 2000 (not, it should be noted, in immediate response to adverse election results). But a court-packing attempt in North Carolina right now would set a new low. Packing a court in the final days of a governor’s administration (assuming Roy Cooper’s lead holds and is honored), based on presumed future disagreement with a court majority that has not even been seated yet and against the just-expressed will of the state’s electorate, would be utterly unprecedented – court-hacking, not just court-packing.

And, to be clear, doing so could be explained only on partisan grounds. There is not, for example, a serious “good government” argument that the court needs more personnel in order to hear more cases or dispose of them more quickly. The most recent Statistical and Operation Report of the state appellate courts indicates that the court’s workload has not increased over the past decade.

At a time when faith in governmental institutions is plummeting and frustration with partisan politics is at an all-time high, further injecting partisanship into the judicial branch would be a terrible mistake.

The will of the people with regard to the state Supreme Court is clear. The General Assembly should respect it.

Joseph Blocher and Neil S. Siegel are law professors at Duke Law School.

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