The N.C. Supreme Court handed down twice as many 4-3 decisions Friday as it had during the rest of the year. Yet it would be a mistake to jump to the conclusion that the 4-3 splits show signs of a new partisan divide within the state’s highest court.
Just one of the four new 4-3 decisions pitted the court’s four registered Democrats against its three Republicans. A closer look at the numbers shows constantly shifting coalitions from case to case. It also shows general agreement in most cases among all seven justices.
The state Supreme Court has issued opinions in 42 cases this year. Thirty-two of those cases, 76 percent, generated unanimous agreement. In only one of the 32 did more than one justice author an opinion. That was Justice Paul Newby’s concurrence to fellow Republican Chief Justice Mark Martin’s June opinion in State v. Jones. Newby did not disagree with his colleagues at all. He used his somewhat lighthearted concurring opinion to compare the case to a fictional crime in the classic Christmas movie “It’s a Wonderful Life.”
One other case among the 42 decided this year yielded a unanimous result, though justices split 5-2 on the reasoning. In the Catawba County ex rel. Rackley v. Loggins opinion handed down Friday, Martin and Democrat Sam Ervin IV diverged from the reasoning Democratic Justice Mike Morgan offered for reversing a lower court ruling. It doesn’t make sense to label this case as a unanimous ruling, though all seven justices agreed on the same outcome.
The remaining nine cases offer examples of more clear-cut splits in legal outcomes. What is not clear is any sign of consistent voting blocs.
Both of this year’s 5-2 decisions, with two justices dissenting rather than concurring, involved coalitions of two Democrats and three Republicans in the majority vs. two Democrats in the minority. In both cases, a Democrat wrote the majority opinion.
In June’s State v. Miller, Democratic Justice Cheri Beasley joined Morgan’s dissent from Ervin’s majority opinion. In August’s Wray v. City of Greensboro, Beasley joined Ervin’s dissent from the majority opinion drafted by Democratic Justice Robin Hudson.
The court’s lone 4-2 ruling this year involved Republican Justice Barbara Jackson joining three Democrats, including opinion author Ervin, in King v. Bryant. Martin and Newby wrote separate dissents. Morgan, the court’s newest member, took no part in this case. The court issued its ruling in January.
That leaves us with six 4-3 splits. That’s one out of every seven cases, or 14 percent. The majority coalitions have shifted from case to case.
Many political observers expected Morgan’s 2016 election to signal a potential ideological shift for the Supreme Court. Morgan unseated incumbent Republican Bob Edmunds. The election flipped the court’s partisan makeup from 4-3 favoring Republicans to 4-3 favoring Democrats.
But the year’s first 4-3 split, in March’s Old Republic Nat’l Title Ins. Co. v. Hartford Fire Ins. Co., involved a case of Morgan siding with the court’s Republicans against his fellow Democrats. Newby wrote the majority opinion. Ervin penned the dissent.
Three of the 4-3 rulings handed down Friday also involved coalitions that defy partisan analysis. In State v. Hammonds, Martin and Newby joined Ervin’s dissent from Hudson’s majority opinion. In Dep’t. of Transp. v. Adams Outdoor Advert. of Charlotte Ltd. P’ship, Ervin joined with the three Republicans to form a majority. The In re Estate of Skinner ruling involved Newby and Jackson joining Morgan’s dissent from Ervin’s majority opinion.
The fourth 4-3 ruling from Friday, State v. Murrell, represented just the second case this year in which the justices’ divisions fell along party lines. (The first was June’s State v. Romano. In that case, justices wrestled with the admissibility of blood test results in a drunk-driving case.) In Murrell, justices diverged over whether an indictment intended to charge a defendant with armed robbery was “fatally defective.” Ervin wrote the majority opinion for the court’s four Democrats. Jackson wrote a dissent joined by her fellow Republicans.
Every justice on the N.C. Supreme Court has voted with the majority at least 88 percent of the time. It’s true that the justice who has dissented most often — Newby, with five — is a Republican. But Democrat Beasley has dissented more often (four times, matching Republican Martin) than Republican Jackson (three). Democrats Ervin and Morgan also have dissented three times. Democrat Hudson holds the highest percentage (95) of cases voting with the majority. She has dissented just twice this year.
A Democrat — Ervin — has written the most dissenting opinions (three). Martin, Morgan, and Newby each have written two dissents. Hudson and Jackson each have written one. Beasley has not written a dissenting opinion this year.
It’s important to point out that the N.C. Supreme Court has yet to issue a ruling in any cases pitting Gov. Roy Cooper or other Democratic partisans against the Republican-led General Assembly or its allies. It’s entirely possible that those cases will generate more partisan 4-3 splits favoring Democrats.
But the historical record of this court’s first nine months doesn’t make party-line votes a foregone conclusion.
Mitch Kokai is senior political analyst for the John Locke Foundation.