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NC Supreme Court candidates offer different visions for holding state lawmakers accountable

Posted September 17, 2022 6:45 p.m. EDT
Updated September 17, 2022 7:15 p.m. EDT

— A pair of North Carolina judicial races stands to have major implications for the ability of state lawmakers to get contested bills cleared through the court system.

From the drawing of voting lines that advantage conservatives to efforts to require photo identification at the polls, the state Supreme Court has stifled a number of policy aims the Republican-controlled General Assembly has sought in recent years.

Today, the state high court includes four Democrats and three Republicans, but the ideological balance of the judicial body could flip if Republicans win at least one of two seats up for grabs in the November election.

Republican state high court candidate Trey Allen, who is general counsel for the North Carolina Administrative Office of the Courts, said he’d work to reign in what they see as judicial overreach.

“Judges should follow the constitution as it was understood at the time of ratification,” Allen said in an interview on WRAL’s “On the Record” program. “When it comes to interpreting statutes, they should implement the intent of the legislature as evidenced by the text of the statute. Anything else I think is judges legislating from the bench. The job of a judge is to rule according to the law and understand that the judge, just like everybody else, is under the law, not above the law.”

Allen is looking to unseat state Supreme Court Associate Justice Sam Ervin IV, a registered Democrat.

Ervin, Allen discuss judicial philosophies as NC Supreme Court election nears

In many prominent cases, including the state’s latest drawing of political lines, Ervin has sided with three fellow Democrats who have struck down GOP bills. While the Democratic majority of justices determined the legislative and congressional maps violated the state constitution, the three Republicans on the high court disagreed, accusing their Democratic colleagues of legislating from the bench.

Ervin acknowledged the court has issued more split opinions in recent years, but he said he couldn’t speak to individual cases or matters that may come before the court in the future. He said he has a track record of working with more ideologically conservative justices to reach consensus.

“I try very hard to come up with decisions that attract votes from all members of the court,” Ervin said. “I’ve written a number of them that thread the needle between very different positions and obtain unanimity.”

The other state Supreme Court contest features two state Court of Appeals judges with different views on the role justices should have in holding other branches of government accountable.

Dietz, Inman discuss perception of partisanship on NC Supreme Court

“Our job as judges is to say, ‘But this is what the law says,’ because I really don’t know what’s going on behind the scenes with lawmakers,” said Republican Court of Appeals Judge Richard Dietz. “Maybe there was an agreement to write it this way in order to get the votes we passed. That’s democracy. That’s our democratic process. Legislating from the bench, when people say that, it’s the idea that judges are maybe saying, ‘But you know, I know more than those folks about lawmaking, so I’m going to step in here and rewrite the law.’ And I think that’s what’s wrong. Our role as judges is to say, ‘This is what the law says and we’ll follow it.’”

Lucy Inman, Dietz’s Democratic opponent and fellow Court of Appeals judge, believes justices have unfairly been portrayed as legislative activists when the reality may just be as simple as justices having different interpretations of state laws.

“Legislating from the bench is a reference to judges going beyond what their authority is as a court and instead making policy and changing the law like the legislature, but that is in the eye of the beholder,” Inman said. “One person’s legislating from the bench may be another person’s analysis. My philosophy is that we apply the text of the statutes as they’ve been written by our legislature. If the text is unambiguous, that’s the law we must follow.”

All four candidates are seeking to present themselves as the one in their race most likely to improve the court’s reputation and make it viewed as a more collaborative body.

“In eight years as a Court of Appeals judge, I’m the only judge who’s never written a dissent and the reason is because I really believe in this idea of collaboration and consensus building,” Dietz said.

Inman said she’s written some dissents that the state Supreme Court wound up agreeing with her on. While she said she’d seek to build agreement with fellow justices if elected, she added that she’s not afraid of disagreement.

“If we have exhausted all of our efforts at collaborating and I believe that the majority of the panel that I’m serving on is misstating the law, breaking from precedent without good reason, it is my duty to stand up for what is right and to write a dissent,” Inman said.

Ervin said he’s more collaborative than some outside observers might think. He noted that much discussion and dialogue goes into draft opinions that are never seen by the public and that he and his fellow justices have thorough discussions before majority and dissenting opinions are published.

“Judges should not have political agendas,” Ervin said. “Politics has no place in the making of a judicial decision, and I think my record shows that I call them like I see them based on the law and nothing else.”

While Allen believes justices should separate their political views from their judicial writings, he has most forcefully articulated a conservative-leaning judicial philosophy. At a Monday event in Cary hosted by the FreeEnterprise Foundation, Allen was the lone state Supreme Court candidate to offer a direct answer on a question about which U.S. Supreme Court justice his judicial philosophy most aligns with. He said it matches closest with the late U.S. Supreme Court Associate Justice Antonin Scalia.

During his “On the Record” interview, Allen told voters he could work with Democratic colleagues if he were elected to the state high court, citing nonpartisan blog posts he had written as a professor at the University of North Carolina at Chapel Hill. “What they’ll find is the work of someone who’s carefully trying to understand and explain the law in an honest way, and that’s the approach that I would take as a member of the North Carolina Supreme Court.”

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