‘We Don’t Wear Different Colored Robes’: NC Supreme Court Justice Sam Ervin Talks Partisanship and the Courts

Sam Ervin IV is one of the two Democrats running in one of the biggest judicial elections in generations because it could decide abortion rights and gerrymandering.

Many voters aren’t aware of perhaps the most important and far-reaching contests on North Carolina’s ballot this year: the elections for the North Carolina Supreme Court justices.

They could determine whether the state ultimately protects abortion rights, equitably funds its schools, or ensures free and fair elections, but most voters don’t even know that judges in North Carolina are elected. 

There are seven justices on the NC Supreme Court, four Democrats and three Republicans, and each serves an 8-year term. Two of those seats are open for election this year and both are currently held by Democrats, which means Republicans need only win one of those elections to switch the balance of the court.

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These elections have become hyper-partisan over recent years and groups supporting both parties have been pouring money and attention into the state’s judicial elections this year. 

And since the US Supreme Court has veered sharply to the right on several fundamental issues, the stakes for this election are high.

But the courts work best with clear, non-partisan application of the law, and though these elections are political, the candidates are not typical politicians, and are prohibited from commenting on issues that may come before the court, even if those issues are the ones voters are most worried about and tend to base their voting decisions on. 

We spoke with Justice Sam Ervin, a Democrat who is running for re-election against Republican Trey Allen, currently the general counsel for NC’s court system.

The conversation showed the unique challenges for candidates in judicial elections, the voters deciding who to support, and, frankly, the media trying to cover these important races without comparing political oranges to judicial apples.

While he would not comment on many of the issues most important to voters, like abortion rights and gerrymandering, issues that might very well come before the court soon, he did cite a number of cases he’s helped decide that he felt showed the importance of the court, and exemplified his legal approach.

Here is our breakdown of how the NC Supreme Court candidates’ records suggest they would likely vote if abortion came down to the state’s high court.

And here is our conversation with Ervin, edited lightly for time and clarity.

Cardinal & Pine: I know you’re not supposed to comment on anything that you may have to rule on soon, but what is it like to run a political campaign where you can’t really talk about the issues most important to voters?

Ervin: Well, I’m so used to it that I don’t know anything else. I mean, I’ve never run for anything other than judicial office. And, the rules are not substantially different now than they were before. I’ve just got something of a self-imposed rule that I think lots of people follow, but it’s not legally mandated, which is, I just don’t comment on policy questions. 

If the General Assembly was to propose statute A, and I came out and said, “I think statute A is either a terrible or a great idea,” and then I’m called to come to construe statute A later, one side or the other, having heard about my pronouncement, is gonna think “He’s already biased against us from the beginning,” and that’s not a good place to be.

Cardinal: That approach doesn’t seem to have stopped the public perception that the courts have become biased.

Ervin: What seems to me as more likely to be driving public perceptions, and I have done no focus groups, I have not done any studies of this, so what I say may be totally off-base, but as we’ve gone from non-partisan to partisan elections, political parties have gotten more and more interested in these races. There’s more and more money being spent on them. Judicial performance is being evaluated by the press in somewhat partisan terms. 

Cardinal: What’s your relationship with your NC Supreme Court colleagues as you all try to maintain these standards while facing criticism that courts have become too politicized?

Ervin: I try very hard to maintain a collegial working environment with everybody that I serve with. I communicate with all of them. I don’t obviously always agree with them, but my sense has been that each of the seven of us were sent here by the voters to work together to decide the cases correctly.

As far as I know, I have a good working relationship with my colleagues in general. That’s not to say they agree with me, not to say that, uh, they wouldn’t do things differently than I do, but I mean, I can talk to all of them, and all of them talk to me.

Cardinal: It makes total sense to hear a judge say you have to take every case on its merits, but do you hold some bedrock judicial principles that don’t change based on the context or specifics of the case?

Ervin: I’ve been in the court system for 30 years at this point, which is kind of a scary thought by itself. And I come out of a background where my father for much of my childhood and adolescence and up through the time he died, was a state or federal trial judge. My grandfather, even though he’s best known for having served in the Senate, was also a state trial judge and a member of the state Supreme Court. So we sat around and talked a lot in my family about law and legal issues, and I’ve learned pretty early that what you’re supposed to do is, once you figure out what the facts are, it’s your job to figure out what the law is that applies to those facts, and apply it. 

And so, my bedrock principle is that. I do not try to have some kind of policy agenda that I attempt to put into effect through my decisions. I took a look at my own skills at the time I seriously started looking into going into public service three decades ago, and concluded that what I did best was to take facts, analyze them legally, and figure out what the answer is, as compared to diagnosing the ills of society and trying to figure out what the best solution for those ills are. My sense is I’m more suited for what I’m actually trying to do rather than what I’m sometimes accused by certain, certain people of doing.

Cardinal: This approach is kind of the complete inverse of a typical political campaign.

Ervin: Oh, yes.

Cardinal: And yet, you’re still having to run a political campaign.

Ervin: If you’re running for the legislature, if you’re running for executive branch office, what you are expected to do and what you ought to do, I mean, there’s literally nothing wrong with it, is look at the society that you live in, in the circumstances that surround you, find things that you think need to be either defended or changed, figure out if there’s something that needs to be done by amending the laws or amending the administrative practices, and then persuade the voters that that’s what all could happen if you’re fortunate enough to get elected.  

And voters choose based on their agreement or disagreement with the policy proposals and the solutions that those candidates promote. And that’s the essence of representative democracy.

What we do as judges is vastly different, and that makes judicial elections, the word on the tip of my tongue is odd or unusual. 

We don’t make those kinds of policy decisions generally, and so it makes it harder to evaluate judicial candidates, and I think it frankly creates this situation in which voters fall back on basic partisan affiliations in judicial races because the other information that’s available to you is not as clear-cut.

Cardinal: So does that mean the voters have to make a pretty big adjustment in their thinking as well, when they are considering which judge to vote for?

Ervin: Well, the voters have to decide what kind of court system they want, and who are the people best suited to play the roles judges are called to play. That’s the task of a voter in evaluating judicial candidates. It’s to understand what it is that judges do: And what judges do is try to figure out what the law is as applied to a particular set of circumstances, and then apply it as objectively as possible and without trying to put some policy agenda into effect, and who’s best qualified to do that. 

Cardinal:

Ok so I’m gonna ask you some questions that I imagine you’re not gonna be able to answer.

Is there anything that you can say about gerrymandering?

Ervin:

No. The code says you cannot comment on the merits of any case that’s pending before any North Carolina court. You cannot comment on the merits of any case that arises out of North Carolina, and you can’t comment on any case anywhere that involves North Carolina law. And that’s obviously to keep us from pre-judging. So, it’s very hard to even see how I could comment on any type of redistricting issue without violating that rule. 

Cardinal:

What about Moore v. Harper? (A case out of NC that’s now before the Supreme Court. Republicans in the NC General Assembly have argued that they have sole power over elections, a claim, that if upheld, would let the legislature do whatever they want unchecked, including suppressing votes based on racial and partisan concerns.)

Ervin:

No, for the reason I just said. It is a case that arises from North Carolina.  The difference is, Moore is not pending in front of us. We’ve already decided the underlying case.

Cardinal: What about the Leandro education funding case?

Ervin: Same thing. I can’t talk about the validity of the existing challenges that are pending in front of us.

Cardinal: What about abortion?

Ervin: I think that falls into the category of something that may very well come before me in the future. And, on the sort of the more credential practice that I outlined earlier, I think I need to preclude from talking about it. I think I would preclude myself from talking about it even if I could.

Cardinal: It’s understandable that you can’t comment on these issues but they are also foremost on voters’ minds. So what guidance can you give to a voter who wants to vote in the state Supreme Court election and is looking to gauge whether they should vote for your or your opponent?

Ervin: What I try to do to voters is suggest to them that I’ve got a pretty long record of making decisions in this court. So look at what somebody does. Is that necessarily easy for a voter? No, we don’t make it easy for voters to do that. But all of our opinions are available. And what I try to tell people is you can look at my record, and even though there’s no question I’ve been a registered Democrat all my voting life, I don’t get up every morning saying, “What is the agenda of the Democratic Party for the court today?” That’s kind of a nonsense thing to say. 

We don’t wear different colored robes at the court, as somebody once pointed out to me. I have made decisions that I am confident that people who are in leadership positions in my own party don’t like, and that should give a voter some comfort that I at least make a conscientious effort to do what I say I do.

Cardinal:  Labels have a tendency to obscure nuance, I know, but can you talk a little about the big debate over judges regarding the difference between originalist and “living document” interpretations of and the Constitution?

Ervin: You will get some people who will say that you’ve got really two ways to construe the Constitution, but that is a false dichotomy if I’ve ever heard one. Not only do we have substantive laws that govern particular areas, we also have legal principles that govern how decisions are supposed to be made. 

And if you look at the North Carolina case law, when you are construing anything, be it the statute or a constitutional provision, the first thing, you just look at the words. What does it say? And if the words are clear and unambiguous as applied to a particular set of facts, you’re not supposed to do anything more. So the first thing you do is ask yourself the question, is the provision that you’re construing clear and unambiguous? If the answer to that question is yes, that’s all you’ve gotta do. But if you go beyond that, if it’s not clear, if it’s perceptible to multiple leanings of the circumstances, then our cases say you’re supposed to look at a range of factors to determine what it is.

You’re supposed to consider things like the context in which that provision appears, how that provision has been construed in prior cases, and the “evil” the provision was intended to address. That’s fairly archaic language, but, I mean, it gets the point across. 

We try to adhere to existing interpretations, because if you start just wildly changing them, then nobody’s gonna know what the rule is, and therefore, the underlying purpose of the law, which is to govern how people act in society, is going to go out the window. And so, you look at all of those things. And so, if you look at that kind of thing, it’s hard for me to see how you can adopt a single academic theory of how to decide a case. And I don’t think the law permits you to do that. 

On the other hand, if you look at the 8th Amendment, which prohibits the imposition of cruel and unusual punishment, the leading case on this area of the law is Trop v. Dulles, which says you should ask, How does this punishment that you’re evaluating square with evolving standards of decency? Now, that, to me, is not an originalist kind of understanding. I’m bound by both decisions, and I’m bound by these legal principles that I’ve outlined earlier.

That’s one of the reasons I say this dichotomy is kind of false, because I don’t know anybody that ignores these other factors.

And so, when I get asked the question, “Are you one or the other?” I say no.

I think that when somebody poses the question like that, it’s kind of a straw man, because what we’re supposed to do is follow the law, and the law doesn’t say you do one or the other.