North Carolina’s gerrymandering decision made that scandal impossible to ignore: What but partisan allegiance could explain such an abrupt turnaround in an issue that defined political power in the state? In their dissent, the Liberals in court accused the Conservative majority of a “legal” partisan manipulation of the law. The majority maintained that the politicization had begun with the earlier anti-gerrymandering decision and warned that the courts should not take sides in political strife.
Those judges are far from the only people who insist that our legal system is and always should be apolitical. Even candidates running in judicial elections tend to downplay the high stakes of those contests, clinging to bromides about impartial judging (plus some hard-hitting crimes to the chest).
Where I live, in Durham, NC, ordinary voters seem barely aware last fall that they had to choose between two competing theories of democracy and would likely decide the future of majority rule in the state for decades. Incidentally, they didn’t hear much about abortion either, though it was no secret that Republican lawmakers 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 was arguably 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 spark a renaissance of democratic constitutional politics. Like it or not, the courts Are another political branch, especially when they decide basic constitutional issues, such as whether liberty and equality should outlaw extreme gerrymandering. Some candidates dare to admit that. On April 4, Justice Janet Protasiewicz won a seat on the Wisconsin Supreme Court and shifted the court’s ideological balance by openly emphasizing its support for reproductive rights and broadly liberal commitments. If North Carolina’s Democratic judicial candidates (without commenting on a specific case, which prohibits judicial ethics) had focused their campaigns more aggressively on a commitment to constitutional values such as voting rights and reproductive rights, the court’s balance might be different today .
Pushing for 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 are called upon to assess what a fair election system looks like. “All political power is vested in and derived from the people,” proclaims the North Carolina Constitution; “every government of right springs from the people” and “is based only on their will.” When judges have to choose between dueling constitutional views of democracy, as the North Carolina Supreme Court has done, voters should have the final say on what they believe democracy means under their Constitution.
