Opinion | The Courts Should Be More Political, Not Less

DURHAM, N.C. — The details are all too familiar: Last fall, an election in North Carolina flipped the balance of the State Supreme Court from Democrats to Republicans, and in less than six months, the new conservative majority had reversed a decision from last December and ruled that the legislature can gerrymander election maps with no constitutional limit. Another episode of political hardball. Another example of Republicans pushing institutions to their limits to keep power.

In a straight count, North Carolina voters are almost perfectly evenly divided between the two political parties: Both senators are Republicans, Democrats hold the offices of governor and attorney general, and presidential elections are decided by margins as slim as tens of thousands of votes. But in practice North Carolina is ruled by a Republican legislature that has majorities big enough to override the governor’s veto. That legislature is now looking to ban abortion after 12 weeks, abolish tenure for new hires in the University of North Carolina system and redraw congressional maps to give Republicans several new seats in the U.S. House of Representatives.

It’s a disheartening story, but the uproar over this latest gerrymandering decision also shows us a way to renew democracy in closely divided and gerrymandered states like North Carolina.

In the myth we are often told about America, the courts are forums of principle, wisdom and deliberation, while politics deals in sudden, often willful shifts of power and policy. To people who believe this myth, the fact that many states, including North Carolina, elect their justices is a sort of scandal, usually ignored or mentioned briefly, then quickly dropped, like a disreputable branch of the family.

The North Carolina gerrymandering decision made that scandal impossible to ignore: What else but rank partisan allegiance could account for such an abrupt switch on a question that determined political power in the state? In their dissent, the liberals on the court accused the conservative majority of a “lawless” partisan manipulation of the law. The majority insisted that the politicization had begun with the earlier anti-gerrymandering decision, and warned that the courts should not “take sides in political battles.”

Those justices are far from the only people to maintain that our court system is, and should always be, apolitical. Even candidates running in judicial elections tend to downplay the high stakes of those contests, sticking to bromides about impartial judging (plus some tough-on-crime chest-beating).

Where I live, in Durham, N.C., ordinary voters seem to have had little way of knowing last fall that they were choosing between two competing theories of democracy and probably deciding the future of majority rule in the state for decades. Nor, for that matter, did they hear much about abortion, although it was no secret that Republican legislators were likely to attack North Carolina’s position as a bulwark of reproductive rights in the South. In other words, the vote for Supreme Court justices may have been the most important of the year, and it was a black box to most voters.

There is another, better way — and here, North Carolina and other closely divided states such as Georgia could spark a renaissance of democratic constitutional politics. Like it or not, the courts are another political branch, most of all when they decide basic constitutional questions, such as whether freedom and equality forbid extreme gerrymandering. Some candidates are bold enough to admit that. On April 4, Judge Janet Protasiewicz won a seat on Wisconsin’s Supreme Court and switched the court’s ideological balance, by openly emphasizing her support for reproductive rights and broadly liberal commitments. If North Carolina’s Democratic judicial candidates had (without commenting on any specific case, which judicial ethics forbids) focused their campaigns more aggressively on a commitment to constitutional values such as voting rights and reproductive rights, the balance of the court might be different today.

Urging more politicization may seem perverse in a culture already drenched in partisanship. But we have to be real. Deep political conflicts over constitutional vision have always existed in American law, particularly when courts are called upon to judge what a fair election system looks like. “All political power is vested in and derived from the people,” the North Carolina Constitution announces; “all government of right originates from the people” and “is founded upon their will only.” When judges have to choose between dueling constitutional visions of democracy, as the North Carolina Supreme Court has been doing, the voters should have the last word on what they believe democracy means under their Constitution.

State Supreme Court elections are often the only way for voters to assert this power. Thanks to Republican gerrymandering, a Democratic majority cannot prevail just by winning the most votes: It has to scale the mountain of an artificial legislative majority. Electing the governor, as North Carolina Democrats have done for the past two election cycles, is no help, because with Republican supermajorities in the legislature, the governor can do next to nothing to check conservative overreach. And activists can’t even contemplate amending the State Constitution to limit gerrymandering because the legislature must propose amendments in North Carolina, and the current majority is certain to bury any initiative that would weaken its power. Electing Supreme Court justices, however, is a way to change the legislature itself. The court can force changes in the way elections are run, ensuring that the majority’s voice is heard. To be clear, this is not pie in the sky: It is what the North Carolina Supreme Court had begun to do before the 2022 election. In coming elections, judicial candidates should clearly communicate what is at stake for democracy.

Since the U.S. Supreme Court overturned Roe v. Wade in 2022, many liberals have rediscovered an old democratic insight: Constitutional principles are too important to leave to judges alone. If candidates in North Carolina and other states follow the Wisconsin model and convey the stakes of judicial elections vividly, then voters can claim a real role in deciding what their Constitutions mean. In the states, Democrats should be campaigning on voting rights, reversing gerrymandering and protecting basic freedoms like abortion. At the national level, Democrats should hold bolder Supreme Court confirmation hearings, in which senators grill nominees on their commitments to democratic principles and basic freedoms — and don’t take courtly evasions for answers. Democrats should also promote stronger congressional oversight of the Supreme Court and even push for a new generation of constitutional amendments designed to strengthen our democracy and empower voters — an uphill battle, to be sure, but one that is more likely if we can rebuild widespread conviction that the Constitution belongs to all Americans, not just a few judges.

We can start in states where democracy is most in danger from entrenched minority rule yet, at the same time, most empowered by judicial elections. All that is needed is for judges and activists who are committed to democratic principles and other basic freedoms to say what they mean and let the people decide.

Jedediah Britton-Purdy is a professor at Duke University School of Law and the author of seven books, most recently, “Two Cheers for Politics: Why Democracy Is Flawed, Frightening — and Our Best Hope.”

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