With political majority at stake, NC Supreme Court candidates debate law vs. politics

The Democrats and Republicans running for two key seats on the N.C. Supreme Court held a debate Friday night, with many questions focused on the blend of politics and the court — an unavoidable mixture in a state with partisan judicial elections.

This November’s election carries extra importance for the court as the outcome will determine which political party controls the court’s majority for at least the next few years.

Democrats currently hold a 4-3 majority on the Supreme Court. But both seats up for election are currently held by Democrats. If Republicans win even one of the two races in November, they will flip the majority back to their party’s control for the first time in six years.

The recent undoing of the Roe v. Wade abortion rights precedent by the U.S. Supreme Court has put a renewed focus on state supreme courts, since they likely will be charged with determining the constitutionality of any new abortion restrictions that various states may try to pass.

But in North Carolina, political cases are nothing new for the high court. Particularly in recent years, with the legislature under Republican control and the governor’s office under Democratic control, the court has often stepped in to officiate power struggles between those branches — in addition to dealing with other political cases on issues ranging from voting rights to taxpayer funding for both public and private schools.

The News & Observer reported earlier this summer that Democratic candidates have raised significantly more money so far than their Republican counterparts. However, that only tells part of the story. If recent history is any example, outside special interest groups will likely dwarf the candidates themselves, spending millions of dollars to influence voters.

Here’s a look at the four candidates on the ballot this year.

Ervin vs. Allen

One of the races pits Democratic incumbent Justice Sam Ervin IV against Republican challenger Trey Allen.

Ervin is the grandson of the late U.S. Sen. Sam Ervin Jr., the North Carolina senator famous for leading the Congressional investigations that brought down both Joseph McCarthy and Richard Nixon. A native of Morganton, Ervin has been a judge for the last 13 years, having won election to the N.C. Court of Appeals in 2008 and the N.C. Supreme Court in 2014.

Allen, who is close to Republican Chief Justice Paul Newby, has worked as a lawyer and professor but doesn’t have experience as a judge. When Newby became chief justice last year, he hired Allen as general counsel for the courts system. The Robeson County native also served in the Marine Corps as an attorney.

Dietz vs. Inman

The second race on the ballot doesn’t have an incumbent running for re-election. Democratic Justice Robin Hudson, who is almost at the court’s mandatory retirement age, chose not to run again.

Democrat Lucy Inman and Republican Richard Dietz seek to replace her.

Dietz and Inman have similar resumes. Both currently serve on the N.C. Court of Appeals — Dietz since 2014 and Inman since 2015. Inman worked as a trial court judge before that, and Dietz was an attorney who focused primarily on appellate work.

Politics at work in legal decisions?

When judicial elections are partisan, a judge’s politics can be seen as a factor in his or her decision-making. The three candidates not currently on the court have either implied or explicitly said that the current court is too political. At Friday’s debate, Ervin, the only incumbent in the race, defended his record as apolitical.

▪ Inman: “It’s very troubling to me when we see the Supreme Court, especially in the year of 2021, had so many cases of all matters — that weren’t even political — where you had a 4-3 decision. I think a pattern of judges and justices voting together in lockstep suggests that they are not acting as independently as they need to be.”

▪ Dietz: “I think our Supreme Court needs leaders who can reassure the public that the judicial branch, the courts, are independent.”

▪ Allen: “More than any other branch of government, the judiciary depends for its authority on the public trust. ... If we get to a point where a critical mass of the public no longer believes that our courts function as courts of law and instead function as political bodies — as super-legislatures — we’ll lose our justice system.”

▪ Ervin: “I can point to you at least one piece of evidence that I can do the job fairly and impartially: I have the endorsement of both the Advocates for Justice and the Association of Defense Attorneys. These are folks who litigate against each other. But both of them have concluded that my record is one that they can have confidence in.”

When to step in and speed things up?

One of the questions at Friday’s debate, which was hosted by the Federalist Society in Raleigh, focused on the court’s actions this year to expedite a handful of political cases.

Critics have said the court’s Democratic majority did so to make sure the cases were heard before Republicans might potentially take over next year, depending on the outcome of the election. But others have defended the court’s decisions as appropriate, to make sure time-sensitive cases don’t linger for years, like most lawsuits do.

Ervin said he isn’t allowed to explain the details, since he’s on the court that’s been making those decisions. But in general, he said, state law allows them to speed up cases of “substantial public importance” by having them skip over the Court of Appeals, if there’s a good chance the case would ultimately end up at the Supreme Court anyway.

Allen, his opponent, hit hard on the matter: “Many people have have suggested that that action appears related to the fact that we have an election coming up. I think that’s unfortunate. I think that makes the court look like a political body.”

Ervin, however, said he doesn’t think that criticism applies to him: “I would challenge anyone to look at my record. You can find instances in which I have voted in ways that would not be perceived to be what one would expect, given my political position.”

In the other race, Dietz and Inman both agreed that there are good reasons for the Supreme Court to skip over the Court of Appeals. However, they disagreed on what types of cases the Supreme Court should target.

Dietz said criminal law cases are good candidates for being resolved as quickly as possible, especially “where it’s possible that someone is in prison who should not be in prison, and had their liberty taken away by the state.”

He specifically said the court should not speed up political cases. But Inman said that in many cases, especially when elections or voting rights are concerned, that’s exactly when the Supreme Court does need to speed things up.

“I think of election law,” Inman said. “Because we’re going to have an election, and if there’s a dispute and you need to get that resolved before the election, that would be a reason to do it more quickly.”