A Test of American Democracy

(Photo: AP/Robert Willett/The News & Observer)

People celebrate at Davie Street Presbyterian Church in Raleigh on May 15 after learning that the U.S. Supreme Court declined to consider reinstating North Carolina's 2013 elections law.

This week, after years of litigation, the U.S. Supreme Court let stand a federal appeals court decision striking down North Carolina’s restrictive 2013 voting law. The lower court had ruled that parts of the law illegally “target[ed] African Americans with almost surgical precision.”

That outcome is a victory not only for North Carolina voters but also for our democracy. For the political process to function, state and federal lawmakers must respect baseline democratic norms—the laws and traditions that guard the integrity of our democracy against extreme political gamesmanship and threats to minority rights.

When state lawmakers cross those lines, as they did in North Carolina, it is up to the courts to protect core democratic values and the rule of law. But in North Carolina, and in other states around the country, lawmakers are again trying to manipulate the “rules of the game” to their own advantage, this time putting the state judiciary in their crosshairs.

These attacks on the courts magnify the heightened politicization of the federal bench. President Trump’s assault on the legitimacy of a “so-called judge,” his assertion that the courts would be to blame for a terrorist attack, and his call to break up the Ninth Circuit Court of Appeals after it ruled against the administration, all contribute to a political environment where state and federal lawmakers may feel less constrained by the conventions that ensure the courts are an independent check on the political branches.

Since North Carolina Democrats won control of the governor’s mansion last November, along with a majority on the state’s highest court, the Republican-controlled legislature has proposed, and passed, a slew of bills focused on entrenching partisan interests in the state’s courts. It’s a worrying trend that risks normalizing political interference with the courts. Already this year, the legislature has twice overridden the governor’s veto on bills that made it through both chambers, and several other problematic bills have passed the House.    

One new law, for example, reduces the size of North Carolina’s intermediate appellate court by three seats—a seemingly small change with big political ramifications. Several Republican-appointed judges are expected to hit the state’s mandatory retirement age in the next few years, and the new law effectively prevents the state’s Democratic governor from filling those slots. Unlike previous court reform efforts, the bill was passed without input from the court of appeals, its judges, or the courts’ administrative body.

In a dramatic move just days before the legislature overrode the governor’s veto, Judge Doug McCullough—a Republican who was expected to step down later this month when he reached the mandatory retirement age—resigned in protest so that the governor would be able to appoint a new judge to fill the seat before the bill became law. McCullough said, “I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on.”

Unfortunately, similar hijinks are cropping up around the country. A Brennan Center analysis found that lawmakers in at least 15 states have introduced 41 bills targeting state courts, often to achieve overtly political goals. These measures range from efforts to manipulate the way judges reach the bench to brazen attempts to unseat sitting judges, to restrictions on courts’ jurisdiction and power. In Arkansas, Georgia, Indiana, and North Carolina, bills have passed; in Arizona, Florida, Illinois, and Oklahoma, bills have been voted out of a chamber of the legislature.

One particularly troubling new trend is a group of bills that would allow state legislatures to—in one way or another—refuse to enforce court decisions. This includes a bill that passed the Arizona House of Representative that would give lawmakers the authority to prohibit the use of state resources to implement federal court rulings, and a Washington bill that would empower the legislature to override state court decisions. So far this year, nine such bills have been introduced in seven states.

The potential ramifications of these political power grabs are significant. State courts hear more than 95 percent of all cases nationwide. Judges’ decisions affect everything from consumer rights to the environment to education funding—and because few state judges enjoy life tenure, and most state constitutions can be changed relatively easily, state benches are more vulnerable to manipulation than their federal counterparts. When the lines between judging and politics start to blur, it risks eroding public trust in our judiciary.  

In June 1937, after FDR moved to pack the Supreme Court after it struck down his signature New Deal legislation, his own party rejected the effort as “an invasion of judicial power such as has never before been attempted in this country.” It’s hard to imagine a political leader so strongly defying his or her own party today. But that’s what American democracy desperately needs: politicians willing to put a stop to the present metastatic greed for partisan power, especially when the integrity of the judiciary is on the line. 

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