The North Carolina Supreme Court appears to have reversed course on how to handle conflicts of interest among its members, opening the door for a Republican justice to rule on lawsuits against his father, a powerful GOP state legislator. The move came amid a campaign by powerful conservative interests opposed to the court taking collective action to address conflicts of interest.
The court, which has a 4-3 Democratic majority and is led by Republican Chief Justice Paul Newby, recently decided to allow individual justices to determine when they must recuse themselves, rather than the whole court making the call. The decision came after months of Republican attacks on the justices because they were considering enforcing the court's ethics rules by requiring two colleagues to sit out a pending case challenging the authority of a racially gerrymandered legislature to pass constitutional amendments. The justices at issue are Phil Berger Jr., son of Phil Berger Sr., the longtime state Senate leader who's a named defendant in the suit, and Tamara Barringer, among the former state legislators whose authority is being challenged.
The high court asked the parties to the case — the North Carolina NAACP and the state legislature — to weigh in on whether the individual justices with conflicts of interest should decide if they can hear the case.
While the legislature argued for putting the decision in the hands of individual justices, the NAACP argued that the final decision on recusal should rest with the entire court, a stance supported by briefs from law professors and judicial ethics experts. For example, a brief submitted by the Brennan Center for Justice, which advocates for stronger judicial ethics rules, cited Americans' declining confidence in the courts and called for a process that doesn't rely on an individual justice's discretion. The group's brief cited studies showing that "judges, like all people, have difficulty recognizing their own biases."
A few conservative ex-justices also filed a brief arguing for what it called the "unbroken" tradition of allowing individual justices to decide when conflicts of interest require recusal. But the NAACP pointed out that in 2019, under former Chief Justice Cheri Beasley, the entire court decided a motion to disqualify Justice Anita Earls, a Democrat, from a gerrymandering case due to her work as a former voting rights attorney.
A Pope-funded pressure campaign
As it was soliciting advice on how to handle conflicts of interest, North Carolina's high court became the target of a pressure campaign led by Republican operatives seeking to block collective action by the court to enforce its ethics rules.
Dallas Woodhouse is a former TV reporter, director of the state chapter of the Koch-funded Americans for Prosperity, and former head of the state GOP who now works for the Carolina Journal, a monthly publication of the conservative John Locke Foundation. The John Locke Foundation was founded and is largely funded by powerful Republican donor Art Pope, who played a key role in gerrymandering the legislature at issue in the NAACP's lawsuit.
Throughout last fall, Woodhouse repeatedly attacked the idea of the court enforcing its ethics rules. He described disqualifying justices with conflicts of interest as "an astonishing and unprecedented power grab" that would "destroy the court for years to come," and he accused the Democratic justices of preparing to engage in a "bloodless coup d'etat" — never mind that justices in more than a dozen states can remove colleagues from cases in which they have conflicts of interest.
During this period, Woodhouse also started a Carolina Journal podcast on the state Supreme Court called "Extreme Injustice." On one of the episodes, Jeanette Doran, a former state Supreme Court candidate now with the N.C. Institute for Constitutional Law — part of Pope's conservative influence network and among the groups that filed briefs supporting the legislature's argument on recusal — characterized the court disqualifying justices with conflicts of interest as "bullying."
Woodhouse claimed back in September that legislators were "openly advocating" the idea of impeaching justices who voted to remove Barringer and Berger. However, he didn't quote any of them saying that, and he acknowledged that there aren't enough votes in the Republican-controlled state Senate to remove the justices.
To get around the vote shortfall, Woodhouse suggested a brazen power grab: If the state House voted to impeach, he wrote, the justices would be suspended. That would leave the court with a temporary Republican majority, unless the suspended justices resign and allow the governor to appoint replacements. Woodhouse said the Senate could "slow walk" the impeachment trials for a year until the GOP has a chance to win control of the state Supreme Court in this year's election.
His idea apparently appealed to the legislature's Republican leadership. Before state lawmakers adjourned in December, they passed a resolution that included their agenda for the next session in 2022 — and impeachment was on the list.
Such an abuse of judicial impeachment power would be unprecedented in the U.S. The Brennan Center for Justice has argued that impeaching judges for the decisions they make would "toss aside a centuries-old understanding that if the impeachment power is used to punish judges for their rulings, it undermines the vital independence of our judicial branch."
'A thumb in the public's eye'
After weighing the arguments, the North Carolina Supreme Court voted on Dec. 23 to leave the recusal question up to the two individual justices. A week later, the court released an unsigned order in the matter that also says justices facing a recusal request will now have the option of referring the question to the other justices for resolution. The order also brought some transparency to the process by ensuring that it's clear who makes the recusal decision.
On Jan. 7, Justices Berger and Barringer denied the NAACP's motions to disqualify them from the case. In his order, Berger said he could hear the lawsuit because his father was sued in his "official capacity." He didn't mention his 2020 recusal from a lawsuit filed against Sen. Berger in his official capacity over a 2018 voter ID law. Three justices — Berger along with Democrats Earls and Sam Ervin — will soon decide whether to recuse themselves from deciding a lawsuit challenging gerrymandered election districts.
The Brennan Center's Douglas Keith expressed disappointment in the court's decision to allow individual justices to decide on recusal. "A process that lets judges assess their own biases is a thumb in the public's eye," Keith told Facing South. "Courts have no power without the public's trust. This process does little to safeguard that trust."