North Carolina’s gerrymandering decision made this scandal impossible to ignore: What else but rank partisan loyalty could explain such an abrupt shift in an issue that determined political power in the state? In their dissent, liberals on the court accused the conservative majority of “lawless” partisan gerrymandering. The majority insisted that politicization had begun with the earlier anti-gerrymandering decision and warned that courts should not “take sides in political battles.”
These judges are far from the only ones who maintain that our judicial system is, and should always be, apolitical. Even candidates running for judicial elections tend to downplay the high stakes of these contests, sticking to bromides about impartial judging (as well as some tough-on-crime chest-bumps).
Where I live in Durham, North Carolina, ordinary voters seem to have had little way of knowing last fall that they were choosing between two opposing theories of democracy and likely deciding the future of majority rule in the state for decades. They also didn’t hear much about abortion, although it was no secret that Republican lawmakers were likely to attack North Carolina’s position as a bastion 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 for most voters.
There is another, better way, and here, North Carolina and other closely divided states like Georgia could lead to a renaissance of democratic constitutional politics. Like it or not, the courts are another political branch, especially when they decide basic constitutional questions like whether liberty and equality prohibit extreme gerrymandering. Some candidates are bold enough to admit it. On April 4, Justice Janet Protasiewicz won a seat on the Wisconsin Supreme Court and shifted the court’s ideological balance, openly highlighting her support for reproductive rights and generally liberal compromises. If North Carolina’s Democratic judicial candidates (without commenting on any specific case, which judicial ethics forbid) had 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 steeped in partisanship. But we have to be real. Deep political conflicts over constitutional vision have always existed in American law, especially when courts must judge what a fair electoral system looks like. “All political power is vested in and derived from the people,” announces the Constitution of North Carolina; “All government by right comes from the people” and “is based only on their will”. When justices must choose between confronting constitutional visions of democracy, as the North Carolina Supreme Court has been doing, voters should have the final say on what they think democracy means under the its Constitution.
