What is the NC Supreme Court? And how does it work?

A primer on the NC Supreme Court: Who’s on it, who’s running for re-election, and why it’s been accused of partisan bias.

April 28, 2023 was a lesson for anyone who’s ever thought North Carolina’s courts were unbiased. 

In one day, the newly elected Republican majority on the NC Supreme Court issued three separate rulings—one on voter IDs, one on felony voter disenfranchisement, and one on partisan gerrymandering. 

As the nonpartisan Center for Public Integrity noted, the result was that a court charged with upholding independence had all but giftwrapped partisan advantage for North Carolina’s Republican legislative majority. 

Most telling was the gerrymandering ruling. The court’s five Republicans out-voted the two Democrats to rule that gerrymandering—in which a political party uses its redistricting power to stack future elections in their favor, by moving district borders in ways that benefit their candidates—was outside a state Supreme Court’s purview. 

Instead, they said, gerrymandering was a policy decision, and “policy decisions belong to the legislative branch.” North Carolina has been considered by some to be the most gerrymandered state in the United States—and the Court’s ruling ensured it would stay that way under Republican rule. 

Common Cause’s Bob Phillips called it “the worst decision, perhaps, the state Supreme Court has ever made,” according to the Center for Public Integrity. And, in her dissenting opinion, Justice Anita Earls—one of two Democrats on the court—wrote that “today’s result was preordained on 8 November 2022, when two new members of this Court were elected to establish this Court’s conservative majority.” 

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What the heck is gerrymandering and why should we care? Political correspondent Michael McElroy explains the process with a topic we all care about: UNC vs. Duke basketball. Watch here ⬇️ #Gerrymandering #Redistricting #fairmaps #supremecourt #scotus #legalnews #northcarolina #nc

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Republicans wasted no time taking advantage. They gerrymandered the state’s Congressional districts and its state legislative districts with impunity in 2024.

In a state where voters are closely split between Democrats, Republicans, and independents, 11 of NC’s 14 seats in Congress will almost certainly be won by a Republican this year, thanks to the creative district maps made by gerrymandering. And even if Democrats win more votes overall, it would be virtually impossible for them to win a majority in the state legislature. 

As Cardinal & Pine’s Michael McElroy wrote in November: “Republicans in this deeply purple state have manipulated the voting process to all but ensure that they can’t lose an election for the next decade, even if Democrats win more votes across the state overall.”  

When that happens, they’ll call it a triumph of Republican ideology. But really, it’s a victory for partisanship over judicial independence. 

The courts aren’t nonpartisan in NC. That’s a fantasy, democracy advocates say. And at the top of it all is the NC Supreme Court. Let’s understand how it got this way.

What’s the NC Supreme Court?

There’s the US Supreme Court, then there’s a state Supreme Court. Every state has one.

NC’s Supreme Court has the final say on all matters pertaining to state law. That means, if a court challenge is raised to the legislature’s lawmaking, it will likely be the state Supreme Court that decides it. 

NC Supreme Court cases aren’t decided by a jury. They are heard and resolved by seven justices, who are elected by voters to eight-year terms. Right now, one justice is up for re-election this year, on Nov. 5 (Democrat Allison Riggs). Another seat on the court, also held by a Democrat (Anita Earls), will be on the ballot in 2026. Three Republicans will be on the 2028 ballot, and two Republicans on the 2030 ballot. 

The Court is led by a chief justice, who also oversees the state’s Judicial Branch. 

Elections for the state Supreme Court were once considered nonpartisan—meaning candidates’ party affiliation wasn’t on the ballot—until the 2016 elections delivered a GOP majority in the NC Legislature and a Democratic governor. Those legislators, now facing opposition in the executive branch, moved swiftly to limit the powers of the governor’s office, and then they remade the judicial branch, making court races into partisan elections. 

NC became the only state in nearly a century to change the law to decide court races that way. Since then, Republicans have won 5 of the last 6 elections on the Supreme Court. They’ve dominated races for the state Court of Appeals too. 

By and large, Democratic contenders in these races have avoided partisan campaigning, sticking to the more traditional idea that judges should remain unbiased. Republican candidates, however, have been strident about their intentions—like campaigning at a dinner named for the late US Sen. Jesse Helms, one of NC’s most notoriously bigoted figures of the 20th century. 

Now Republicans hold a 5-2 majority on the NC Supreme Court. 

The Republicans are: Chief Justice Paul Newby, Justice Tamara Barringer, Justice Richard Dietz, Justice Trey Allen, and Justice Phil Berger Jr. Notably, Berger is the son of the top Republican in the state Senate, and he has broken with best practice, according to court experts, by refusing to step aside on cases where his father is a defendant.  

The two Democrats are civil rights attorneys Anita Earls and Allison Riggs. Their seats are the next two up for re-election. 

Also of note, Earls is the only non-white member of the court. And Republicans have attacked her because she’s criticized the lack of diversity on the courts. 

What comes next?

If Democrats are going to restore some balance on the court, it will take patience. None of the Republicans on the court will be up for election until 2028. But change is not impossible.

The first step is the 2024 elections. The only seat up belongs to Riggs. In 2023, Riggs was appointed by Gov. Roy Cooper to finish out the term of former Justice Mike Morgan, who stepped down to run for governor. (NC’s Supreme Court justices are elected, but in the case that one steps down or dies during their term, the governor may appoint a new justice to finish it out.)

North Carolina Gov. Roy Cooper, right, appoints State Court of Appeals Judge Allison Riggs, left, to the North Carolina Supreme Court to fill a vacancy, Monday, Sept. 11, 2023, at the Executive Mansion in Raleigh, N.C. Riggs, one of two Democrats on the seven-member court, is up for re-election in 2024. (AP Photo/Hannah Schoenbaum)

Riggs’ opponent in the November election will be Republican judge Jefferson Griffin, who currently sits on the NC Court of Appeals. 

Riggs, a former attorney for the Southern Coalition for Social Justice, was a leading voting rights lawyer for more than a decade in NC, arguing a landmark redistricting case at the US Supreme Court. 

 

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On his campaign page, her opponent Griffin describes himself as an “originalist and a textualist.” Originalism is a judicial philosophy based on a literal interpretation of the US Constitution, or by considering the intention of the Constitution’s authors. 

The philosophy gained momentum in conservative circles after the Civil Rights Movement and the Brown v. Board of Education’s decision for desegregation, and critics of it say it adheres too closely to the notions of an antiquated time where Black people were still kept as slaves. 

Originalists also tend to vote against reproductive freedom, leaning toward the laws governing women’s bodies at the time when the state was founded.

In 2026, the midterm election will include the seat held by the other Democrat on our Supreme Court, Anita Earls, who, like Riggs, made her career as a voting rights attorney at the Southern Coalition. 

If NC voters want to see a change in who sits on our Supreme Court, they’ll need to make sure the 2024 and 2026 elections hold onto Democrat judges. They’ll also need to keep a Democrat in the governor’s office (remember, it’s the governor who appoints a judge if one leaves). 

As Cooper’s two terms wind down, Democrat Josh Stein, NC’s attorney general, will face Republican Mark Robinson, our lieutenant governor, in the Nov. 5 general election.

And then, in 2028, voters will get the chance to swing the balance of power on the NC Supreme Court. It may feel ages away, but as anyone who remembers where they were in 2020 can tell you, four years can pass quickly.

Look for more coverage of the NC Supreme Court elections in the coming months at Cardinal & Pine.