NC Republicans attack separation of powers. Our court won’t do anything about it | Opinion

Ran Coble has done North Carolina a solid. You might not know of Mr. Coble. But for over 30 years he ran the N.C. Center for Public Policy Research — a respected, bipartisan, good-government non-profit. He’s old school North Carolina — modest, soft-spoken, careful, understated, grounded. Not a firebrand, like some who could be mentioned. Coble not only did us a solid, he is a solid.

Coble, from retirement, wrote the Nov. 29 report “NC legislature’s actions are ‘death by a thousand cuts’ to the separation of powers” outlining in stunning, if unemotional, detail Republican legislators’ decimation of our state Constitution’s demand that the “legislative, executive, and supreme judicial powers shall be forever separate and distinct.”

He notes, as Tar Heels know, they’re at it again. The more bitter the electoral defeat, the more robust the subsequent abuse. They’ve left our constitutional system in shambles. And they are, as ever, unsatisfied.

You might reasonably wonder why lawmakers persist in the patently unconstitutional cascade. It is greed, of course — the ancient, biblically described, lust for power. But Republican leaders are also confident they have a ready, even enthusiastic, enabler in the new North Carolina Supreme Court.

It might seem odd, but state constitutional standards — especially separation of powers requirements — don’t typically present federal legal questions. As a result, state supreme courts, rather than the United States Supreme Court, get the final say. And our lawmakers feel they can rely on the loyalty of the N.C. Supreme Court even when the state Constitution obviously prohibits what the General Assembly is out to do. Not because the justices are right, but because they are final. And our Republican leaders know that “their” justices are not really judges. They are obedient pols. (That’s me, rather obviously, not Mr. Coble.)

Why do I say that? Well, one could begin with the singular dismantling of the traditional processes of judicial review they’ve initiated — the unprecedented use of “rehearing” mechanisms, the trashing of precedent and stare decisis, the destroying of what lawyers call the law of the case, and the like.

But I turn instead to the language of the Republican court’s opinions — since they announced themselves in April 2023 — describing, in almost idolatrous terms, the awe-inspiring supremacy of the North Carolina General Assembly.

Justice Philip Berger Jr., son of state Sen. Phil Berger Sr., explained in Holmes v. Moore (2023) that “’In North Carolina the legislature is the great and chief department of government. It alone is created to express the will of the people.’” He also said “the proper exercise of judicial power requires great deference to acts of the General Assembly, as the legislature’s enactment of the law is the sacrosanct fulfillment of the people’s will.” Accordingly, “with the ability to declare a legislative act unconstitutional, courts wield a ‘delicate, not to say dangerous’ power which is ‘antagonistic to the fundamental principles of our government.’”

“Sacrosanct.” That must have made his daddy proud. Similar sentiments were offered by Chief Justice Paul Newby in Harper v. Hall (2023) and Justice Trey Allen in Community Success Initiative v. Moore (2023) — describing what the justices deemed a “course correction” from the judicial patterns of the past. The declaration of legislative supremacy may sound glorious in its obsequiousness, but it is flatly at odds with the demands of independent judicial review announced by Chief Justice John Marshall in Marbury. V. Madison (1803).

North Carolina’s form of government requires a state Supreme Court that enforces the law, not the demands of the caucus. We don’t seem to have one.

This story was originally published December 4, 2024 at 5:00 AM.