Wall Street Journal Blasts N.C. Supreme Court

August 29, 2022

“These are progressive political arguments from MSNBC, not legal judgments.”

The Wall Street Journal editorial board took the North Carolina Supreme Court to task for all but invalidating two constitutional amendments that voters approved by double digit margins. Below are excerpts. Read the whole piece here: The Philosopher Kings of North Carolina.

“North Carolina’s activist Supreme Court seems to believe that it’s the law unto itself. One of its dubious decisions on partisan gerrymandering is pending review this fall by the U.S. Supreme Court. But this month the state Justices outdid themselves, ruling 4-3 that unlawful gerrymandering also could be a legal excuse to undo two constitutional provisions that voters strongly approved.

“The majority remands the case for further review, but it notes that the trial court already made related factual findings. Members of the NAACP, the court said, ‘will be effectively denied the right to vote’ by voter ID. The tax cap ‘places a flat, artificial limit on income taxes,’ which ‘prohibits the state from establishing graduated tax rates’ and ‘tends to favor white households and disadvantage people of color.’ These are progressive political arguments from MSNBC, not legal judgments.

“The dissent by Justice Philip Berger Jr. is unsparing. He says the state constitution clearly lets the Legislature propose amendments, full stop, and the majority ‘egregiously violates separation of powers.’ The new multifactor test will obligate judges ‘to look into the substance of each legislative action and weigh the policy implications.’

“And where else might the same logic be extended? ‘A malapportioned legislature ratified the Twentieth Amendment on January 5, 1933,’ he says. ‘Under the majority’s reasoning here, is this ratifying vote voidable?’

“The dissent ends with a question to a higher legal power. ‘When,’ Justice Berger asks, ‘does judicial activism undermine our republican form of government guaranteed in Article IV, Section 4 of the United States Constitution such that the people are no longer the fountain of power?’

“An interesting query. The way that North Carolina’s four judicial philosopher kings are going, the U.S. Supreme Court might want to find an occasion soon to answer it.”