Dan Bishop is (partially) right: NC courts shouldn’t operate in secrecy

Here’s a question for the court: should elected judges be able to issue rulings anonymously?

One Republican congressman is suing North Carolina’s state courts over decisions he says were shrouded in secrecy — and he may have a point.

Candidate filing for 2022 was delayed, then back on, then delayed again in a series of court rulings that eventually led to the postponement of North Carolina’s 2022 primary elections from March until May. But the orders were passed down without the public knowing who made them.

U.S. Rep. Dan Bishop announced last week he filed a federal lawsuit to force judges on the North Carolina Supreme Court and Court of Appeals to disclose how they voted on the rulings. Instead of public deliberations, the decisions were made through a process called “conference” in which judges privately discuss a matter, then issue a ruling without identifying how each judge voted, the News & Observer previously reported.

“It’s breathtaking hypocrisy: judges require legislators to draw maps, debate maps, and vote on new maps in public. But they rule on them in the deepest, darkest recesses of the court system,” Bishop said in a press release.

This may be a publicity stunt by Bishop, and a lawsuit may not be the right avenue to address the issue — while concerning, the process seems to be perfectly legal. But the premise behind the lawsuit is correct: consequential court decisions demand transparency.

Not only is the public left wondering how each judge voted, it’s also not exactly clear why — the N.C. Supreme Court’s two-page ruling offers little by way of explanation. Bishop and other Republicans have, predictably, criticized the ruling and accused the N.C. Supreme Court, which has a Democratic majority, of helping elect more Democrats. They’ve also accused Supreme Court Justice Sam Ervin, a Democrat who is up for re-election in 2022, of trying to delay his own primary.

The real reason behind the ruling is likely far less insidious, but that’s part of the problem. Because the ruling itself doesn’t provide much legal justification, politicians who disagree with it have crafted their own narrative — and in doing so, they’ve suggested that voters have reason to mistrust or question the court’s authority. That undermines the public’s faith in judicial decisions, even the right ones.

Our courts shouldn’t operate in secret, but it’s not hard sometimes to understand why they did. North Carolina’s reversion to a partisan judiciary in 2016 has poisoned our institutions in more ways than one, as judges reconcile their own judicial and political philosophies with their loyalty to the party that helped elect them. Anonymity allows them to vote their conscience without jeopardizing their political standing or losing campaign money.

Still, it’s a way to evade accountability, and it shouldn’t be the answer to the growing politicization of our court system.

Anonymous rulings aren’t unprecedented in North Carolina, though they aren’t typically handed down in cases as notable as this one. It’s also not just a state phenomenon: the U.S. Supreme Court has increasingly addressed hot-button issues — including the federal eviction moratorium and the Texas abortion ban — through what’s known as the “shadow docket.” The shadow docket bypasses the process of briefs and oral arguments, replacing lengthy, detailed opinions with hasty, unsigned ones.

It’s wrong in both cases, but in North Carolina, judges are elected rather than appointed for life — so state judges have to answer to the public if and when they run for re-election. For voters to evaluate candidates based on merit, they should know what those merits are.

To be clear, the decision to postpone the primaries was likely the right one, given that gerrymandering lawsuits are still playing out in our state. But the public has a right to know how and why decisions are made. At a time when misinformation is rampant and public trust in our institutions is dwindling, we need all the transparency we can get.

This story was originally published December 29, 2021 at 10:49 AM.