North Carolina Republicans May Want To Pack The State Supreme Court, But They Probably Won't Do It

Republican officials say they have no plans to do so, but Democrats in the state are still on their guard.
A provision to expand the North Carolina Supreme Court would allow Gov. Pat McCrory to appoint two conservative justices
A provision to expand the North Carolina Supreme Court would allow Gov. Pat McCrory to appoint two conservative justices before he leaves office.  

WASHINGTON ― National news outlets, including ThinkProgress, Bloomberg, The New Republic and Slate, have amplified a rumor that Republican lawmakers in North Carolina will increase the size of the state’s Supreme Court and pack it with GOP appointees during a special legislative session for Hurricane Matthew relief on Dec. 13.

It’s a sexy news angle considering that Gov. Pat McCrory (R) has spent the past month trying desperate measures  — including calling for a statewide recount and alleging voter fraud — to hold on to the state’s highest office following a brutal loss on Election Day.

But North Carolina Republican lawmakers deny that they plan to expand the state’s Supreme Court. And the whole idea seems to have spread not because of any reporting about Republicans’ actual plans, but because of a television green-room conversation between three journalists last month.

Expanding North Carolina’s state Supreme Court has not been brought up for consideration at all, the state House deputy majority leader and state Senate deputy president pro tempore told The Huffington Post. North Carolina state Rep. Chuck McGrady said he hopes the assembly doesn’t take up legislation that would expand the number of seats on the court. And state Rep. Jay Adams said in an email that the rumor “did not originate in the NC Republican Party or in the mind of any Republican” he knows and that “it is another issue made from thin air by the Left.”

Not too many people know how the rumor that Republicans would pack the court spread so widely — but Mitch Kokai, a reporter for the right-leaning Carolina Journal, has an idea.

On Nov. 10, Kokai was at a local TV station in North Carolina, waiting to record a program, when he struck up a conversation with two other reporters. As the trio chatted, both reporters mentioned the rumor that state Republicans were thinking about adding justices to the state’s Supreme Court. The maneuver would be a blatant attempt to override the election of Judge Mike Morgan, whose addition to the court flipped its political lean from 4-3 with a Republican advantage to 4-3 with a Democratic advantage.

Kokai didn’t think too much of it until he got an email from a third reporter at one of the state’s largest newspapers, who wasn’t involved in the original conversation, with the subject line: “Would it take a conditional amendment and referendum to pad the NC supreme court from 7 to 9-10?”  

The reporter said in the body of the email: “Sounds like that is being considered as possibility for any Hurricane Matthew special session to take away left-leaning 4-3 advantage on the court.”  

“That was my first exposure to this rumor — two reporters talking about it Thursday morning and then another reporter sending me an email asking me if I knew whether it would take a constitutional amendment to do this,” Kokai told The Huffington Post. “I had no idea, but I did have a North Carolina constitution sitting right behind me.” 

When he saw that the court could be expanded by two justices, Kokai wrote a blog post on the topic that became somewhat of a viral sensation. The New Republic called the posting “a plan” for Republicans to pack the court since the Carolina Journal is owned by conservative think tank the John Locke Foundation. The John Locke Foundation receives most of its funding from Art Pope, a former state representative and businessman who’s been heavily criticized for using money to influence political elections in the state.

Kokai thinks the expansion is unlikely and that the benefits of doing it “would be far outweighed by the negative political costs.” 

“That was probably a discussion before someone said it would be a bad idea and then shelved it,” he said.   

North Carolina state Senate President Pro Tempore Phil Berger has repeatedly denied that state Republicans will attempt to ex
North Carolina state Senate President Pro Tempore Phil Berger has repeatedly denied that state Republicans will attempt to expand the North Carolina Supreme Court.

Democrats are still on their guard. There’s good reason to believe Republicans will attempt to tip the court in their favor on Dec. 13, insists North Carolina state Sen. Terry Van Duyn (D).

“There have been multiple things they have done to demonstrate their willingness to influence who is seated on our Supreme Court,” she said.

In February 2013, a month after McCrory took office, Republican leaders blitzed Democrats and proposed Senate Bill 10, which would have allowed the governor to fire sitting members on several key oversight and advisory boards. A second provision in the bill would have expanded the state Supreme Court by two justices, but was dropped after it lost steam with Republicans in the state House.

Two years later, the Republican-dominated legislature passed a bill that would allow Supreme Court justices to appear on the ballot unopposed in retention elections where voters simply marked “yes” to keep a justice or “no” to remove them. The next three judges up for re-election were Republican and the maneuver “would have assured a Republican majority for the foreseeable future,” Van Duyn said. The bill was struck down by the state Supreme Court this year.

There’s another reason Dems fear that Republicans will expand the court: They’ve expanded another court themselves. In 2000, two of the five seats in the North Carolina Court of Appeals up for grabs were won by RepublicansThat December, Democrats expanded the court from 12 to 15 members, allowing then-Gov. James Hunt (D) to appoint the new members. Pope, then a member of the North Carolina House, promptly sued state Democrats. But the North Carolina Supreme Court ruled that the General Assembly was allowed to expand the court.

“It’s not exactly the same thing as the state Supreme Court but it’s same principle and the same idea of the General Assembly wanting to add people of their own party to the courts,” Kokai said.  

Van Duyn hopes the Republicans keep their word not to pack the court on Dec. 13, but her skepticism remains.

“What I have seen in my brief tenure is that should they change their minds between now and Monday,” she says. “We won’t know about it until we are debating that legislation in committee.”

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