New book chronicles pivotal era in court’s history

A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina. Mark A. Davis. Carolina Academic Press. 208 pages.

Much has been written about the most influential chief justices and epochs of the U.S. Supreme Court, but a rather great deal less has been written about the most significant periods in the history of the North Carolina Supreme Court—which is a pity, since many cases are decided solely on the basis of state law, and so its rulings are just as consequential, if not more so, for people in the state as those of its more closely followed federal counterpart.

So a newly published book by Mark Davis—himself a justice on the North Carolina Supreme Court since his investiture in April—is a welcome addition to scholarship. Davis ably chronicles an especially eventful period in the court’s history, the years from 1986 to 1994 when the court was led by Chief Justice Jim Exum (who penned the book’s foreword). The analysis is also fittingly timed, coming as it does as the court concludes the celebration of its 200th anniversary.

As the title suggests, Davis analogizes this period in the court’s history to the U.S. Supreme Court’s well-known evolution under Chief Justice Earl Warren in the 1950s and 1960s. Both courts expanded the scope of individuals’ rights in relation to the state and charted an unusually progressive course. But, as Davis notes, in some areas the North Carolina court actually went further, fashioning remedies out of the North Carolina constitution above and beyond the ways that federal courts were interpreting the analogous provisions of the U.S. constitution.

Interestingly, this momentous period in the court’s history came about as a bit of a fluke. Owing to a variety of coincidences, five of the court’s seven seats were up for election in 1986. Democrats ran the table, for reasons that probably had more to do with what was happening at the top of the ticket (it was a midterm election at a time when a Republican occupied the White House) than any particular hunger on the part of the electorate for a jurisprudential revolution.

The upshot of the election, though, was an eight-year period in which the bench was unusually well-stocked with judicial luminaries. Relying on dozens of interviews with those who had a close-up view of the action, Davis provides detailed sketches of all of the personalities that made up the court, from Exum to his ideological opposite and frequent intellectual sparring partner, Louis Meyer, and all the justices in between.

But the bulk of the book, about two-thirds of it, focuses on the most important opinions from that period. Many of these decisions are already well known to attorneys in the state, but Davis analyzes the philosophical underpinnings of these decisions, and the internal debates within the court (many of them included stinging dissents, often from Meyer), and examines the historical impact of this philosophical shift. Refreshingly, he attempts to clothe the term the often-flogged epithet “judicial activism” with an objective definition, and concludes that the Exum court was energetically active in some ways, but less so in others.

The end of one of the most significant eras in the court’s history proved to be as coincidental as its beginnings. Through a mix of retirements and a dominant performance by Republicans up and down the ticket, the Supreme Court changed markedly after the 1994 elections, and the Exum court remains a period in the court’s history unlike any other.

Although Davis does not belabor the point amid his analysis of the court’s landmark rulings, there is, then, an unmistakable subtext that runs throughout the whole book: Judicial elections matter.

Follow David Donovan on Twitter @NCLWDonovan