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Last month, the North Carolina Supreme Court granted petitions to rehear two high-profile democracy cases decided by the court last year: Holmes v. Moore, which struck down a voter ID law as intentionally discriminatory (see my colleague Robyn Sanders’s recent piece on the case), and Harper v. Hall, which struck down the state’s congressional and legislative maps as partisan gerrymanders. The court, which has a new conservative majority after last November’s judicial elections, relied on a rarely used procedural rule that allows for rehearing a case when the court has “overlooked or misapprehended” points of law or fact.
Much of the coverage of the court’s rulings has focused on their implications for Moore v. Harper, the case in which the North Carolina congressional map is being challenged before the U.S. Supreme Court as the Court weighs the validity of the so-called “independent state legislature theory.” (The truth is we don’t know yet what these rulings mean for Moore: it depends on exactly what the North Carolina Supreme Court and U.S. Supreme Court do, and when they do it.)
But the decision to rehear these cases also raises important questions about respect for precedent (often called stare decisis), especially for states like North Carolina where court majorities could regularly flip back and forth as a result of judicial elections.
Stare decisis (Latin for “to stand by things decided”) is an important restraint on judges. It ensures stability in the law and promotes the public legitimacy of courts by binding judges to follow principles separate from their personal proclivities.
But the virtue of stare decisis has its limits. No one argues that courts should never reverse themselves. The U.S. Supreme Court should have overturned its 1944 decision in Korematsu v. U.S. — which authorized the internment of Japanese Americans during World War II — the very next day. That would have been a victory for the rule of law, not a failure.
The thorny question is how to define stare decisis as an operative value so it’s not just something that we celebrate when we like a precedent and disregard when we don’t. The U.S. Supreme Court has laid out factors for the federal courts to consider, most famously in Planned Parenthood v. Casey, when the Court declined to overturn Roe v. Wade back in 1992. But Dobbs v. Jackson Women’s Health Organization, of course, casts a long shadow here, and justices like Clarence Thomas have expressed skepticism that stare decisis should be much of a restraint at all.
I can’t give a full answer in the space of a newsletter (sorry!), but I want to share a few thoughts on North Carolina. First, if a court is going to do something radical on substance — like reversing a precedent — it ought to be decidedly un-radical in process. That’s not the case in North Carolina, where the court is relying on a barely used rule intended to correct mistakes, not give litigants a second bite at the apple every time there’s a personnel change on the court.
The substance of the precedent at issue must also be part of the analysis. In our constitutional system, courts play a key role in protecting rights and democratic values. Decisions that roll back rights or make it harder for people to fully participate in the political process, which the North Carolina Supreme Court seems poised to do here, deserve extra scrutiny.
Stare decisis also raises issues unique to state courts, and here I’ll pose questions, not answers. Thirty-eight states, including North Carolina, use elections as part of their system for choosing high court judges. As a result, we can expect to see a lot more volatility in state courts, as compared to their federal counterparts, in response to political changes. What does that mean for stare decisis? Is it even more important than in the federal courts, to ensure stability in the law and public confidence that elected judges aren’t just politicians in robes? Or are there instances where elections should be seen as providing a mandate to revisit prior rulings, and, if so, under what circumstances?
As you can probably guess, these questions aren’t limited to North Carolina. Last month, for example, the South Carolina Supreme Court denied a motion to reconsider its ruling striking down an abortion ban after the author of the lead opinion retired and was replaced by a new justice. In Wisconsin, which just held a supreme court primary on February 21, conservatives could potentially lose their majority after the April general election — a result that would almost certainly prompt calls for that court to revisit its rulings on redistricting and other high-stakes issues. In these and other states, look for debates about the meaning and scope of stare decisis to loom large.