The Court’s Own Data Answers ‘No’
Legislators from across North Carolina are headed back to Raleigh this week for an emergency session of the state’s General Assembly, called by outgoing Governor Pat McCrory (R), to address Hurricane Matthew recovery and “for the purpose of addressing any other matters the General Assembly elects to consider.” Speculation is mounting that one such “other matter” its Republican super-majority may have on their Christmas list is an attempt to pack the state Supreme Court by expanding its bench from seven sitting justices to nine – with those two new seats to be filled with McCrory appointees on his way out the door.
General Assembly Republicans, content to test the water for now, won’t confirm or deny the possibility of such a move.
“I’ve heard the same rumors you have,” state Rep. Robert Reives (D) told Insightus last week regarding the upcoming special session’s goals. “The governor’s proclamation doesn’t call for [supreme court expansion] to be considered, but it certainly doesn’t preclude it either.”
The gambit, first proposed by the ultra-conservative John Locke Foundation (which is bankrolled by McCrory’s chief backer, Art Pope) as a means to “counteract” incumbent justice Bob Edmunds (R) surprise loss to African American jurist Mike Morgan (D), would insure continued Republican dominance over the court. Otherwise, the court will flip to a 4-to-3 Democratic majority when Morgan is sworn in on January 1st.
In an election year marred by a Republican-driven voter suppression law found by a federal court to “target African Americans with almost surgical precision,” a Republican-engineered early voting plan that slashed the number of polling places in some key Democratic- and African American-rich counties, and a tsunami of frivolous (and ultimately rejected) election protests filed by GOP attorneys seeking to nullify the election’s results, it would be naive to doubt GOP lawmakers’ hearty appetite for such a last-ditch effort to cling to power.
Yet even in today’s increasingly ethics-free political climate, Senate President pro tem Phil Berger (R) and his minions will need a high-minded cover story to cloak their impending putsch. The only possible one will be to claim that the state’s highest court is simply overwhelmed with the people’s business, thus requiring its expansion. But friends of democracy are already closing the door on that argument. The non-partisan North Carolina Commission on the Administration of Law and Justice has urged the General Assembly “to tie the number of judges and justices on a given court [only] to the workload,” warning that “any other consideration threatens public trust and confidence.” And widely respected ex-Justice Robert Orr (R) has stated plainly that GOP lawmakers’ “only reason to [expand the court] would be for partisan advantage.”
Insightus has taken a look at authoritative data regarding the state Supreme Court’s workload. And what we’ve found – in data provided by the court itself – fully supports Justice Orr’s conclusion.
Among State Supreme Courts, Nine-Member Benches are Rare Exceptions
Just five states have more than North Carolina’s current seven supreme court justices (Alabama, Mississippi, Oklahoma, Texas and Washington). The rest, including giants like California and New York, all run smoothly with seven or fewer justices.
North Carolina’s Supreme Court Is One of America’s Least Active High Courts
Among 26 high courts (including DC’s and Puerto Rico’s) that report their caseload data to the Court Statistics Project (CSP; a joint program of the Conference of State Court Administrators and the National Center for State Courts), North Carolina and its current seven-justice bench ranked second to last in terms of cases heard (“decided on the merits”) per sitting justice in 2015. The North Carolina court’s 11 cases-per-justice figure stands at less than a quarter of the average (48) across all these high courts.
In terms anyone can relate to: a manager announcing that the company’s least busy employee will henceforth share his slim workload with two new hires should expect to meet with more than just a few raised eyebrows.
Courts build up backlogs – which impede the course of justice – when they take on new cases faster than they clear old ones from their dockets.
According to CSP data, the North Carolina Supreme Court’s clearance rate (cases closed per year expressed as a percentage of new cases added) ranged from a low of 100% to a high of 103% between 2013 and 2015 – keeping pace with 46 other reporting states’ 102% average clearance rate over the same period. Like its peers in most other states, the North Carolina Supreme Court is – and has been for years – completing its work as rapidly as new appeals for its attention arise.
Law Clerks: The Indispensable Fuel of A Busy High Court
|AL, AK, FL, LA, MO, NJ, NM, NY, OH, TX||3|
|AZ, AR, CO, CT, GA, HI, ID, KS, KY, ME, MD, MA, MS, MT, NE, NV, NH, NC, RI, SC, TN, UT, VA, WA||2|
|DE, IA, ND, OR, SD, VT, WI||1|
While its black-robed justices are the familiar public face of any high court, much of its work is done behind the scenes by law clerks: young attorneys serving individual justices for one- to two-year terms, researching case law and statutory law, reviewing filings, advising, and even drafting their opinions. So critical are they to the operation of a busy appellate court that most state and federal justices devote considerable effort to recruiting the best and brightest from leading law schools.
Again according to CSP data, North Carolina’s high court ranks in just the fifth tier among its peer courts with respect to the number of law clerks it provides to associate justices (two each) – in keeping with the court’s moderate workload.
If lawmakers insist that the court faces a workload crisis, a wise first response would be to grow its roster of law clerks. That’s a cost-effective solution because, unlike justices, law clerks work long hours for paltry wages. It’s also a flexible response, because scaling back on short-term employees like clerks is far easier than is removing justices from the bench once the immediate need is past. But most importantly, unlike packing the court, it would be a non-partisan solution preserving the court’s independence.
Undermining the Institution
In the absence of any data-driven justification, a GOP press to pack the court could only weaken both democracy and the court itself. In the words of ex-Justice Orr:
If there’s this partisan expectation, it undermines the institution and it undermines the public confidence in the independence of the court.
The court’s own data is clear: feigned concern over its workload will fail to cloak General Assembly Republicans’ embrace of naked ambition over the the welfare of the institutions placed in their care.
“Chief Justice Martin agrees that the court just doesn’t have the workload to justify its expansion,” Rep. Reives told Insightus last week. “He has all but said that there are other parts of the state justice system that are far more deserving of added support.”
Asked when the public might know for certain whether court-packing is on the GOP’s agenda this week, Reives continued: “Over the last couple of years we’ve seen that we don’t get information from leadership ahead of time. Unfortunately, based on what has happened in previous special sessions, you’re going to find out – similar to the last special session the governor called – only when a bill actually comes to the floor for a vote. It would certainly be appropriate for such an important matter to have some prior discussion, but that’s just not likely to happen.”
As to whether such a GOP gambit might succeed, Reives was cautiously optimistic. “I don’t think so, personally. I don’t get the impression that there’s a majority of support for such an action. Leadership can bring it to the floor, but I don’t think there’s the support for it. The court just doesn’t have the workload.”