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.
