By Troy Shelton
There’s no shortage of debate, among lawyers at least, about whether to continue electing judges. But no less important is what judicial elections mean for the nature of judging.
In North Carolina, we’ve been electing our judges since Reconstruction. The argument for election isn’t hard to follow. People want to pick the judges they like and remove the ones they don’t. Elections let the people—the source of sovereignty—judge the judges.
Elections matter, of course, but so does the choice to select judges by election. Judicial elections may affect how new judges—especially appellate judges—view their role. What, if anything, should a judge understand about the judicial role when he or she joins the court, unseats an incumbent, or flips a partisan seat?
Any answer includes stare decisis. Whether to adhere to precedent in a particular case is never simple. Judges rely on various factors that affect the stickiness of precedent, but it’s ultimately a question of prudence.
Talk of stare decisis is coming soon to our Supreme Court. In November 2022, voters flipped partisan control of the Court. Partisanship and judicial philosophy, of course, are not dispositive in many or most cases at the Court. But over the last several years, and through 2022, major questions at the Court have been decided along partisan lines. The incoming justices also campaigned on a promise to practice a different judicial philosophy if elected.
And, to be sure, differences in judicial philosophy have generated controversial opinions from the Court. Consider a sample of decisions from just 2022. In 4 to 3 opinions, a majority recognized the justiciability of partisan gerrymandering claims, allocated public education spending where the legislature refused, and created new limits on the legislature’s power to propose constitutional amendments. These decisions broadened the role of the judiciary in our state system of government.
Judicial power was on the ballot for Election Day 2022. The voters selected candidates who campaigned on a more limited view of judicial power.
These results were not a shock, given recent trends. From 2016 through 2022, Republicans won nineteen partisan, statewide judicial races. Democrats won four. And of those four, in two races a majority of votes were cast for Republican candidates, but a Democrat won by a plurality because there were two Republicans on the ballot (due to legislative cancellation of primaries).
With those kinds of results, how might the new majority on the Court approach its own recent decisions, which were decided along partisan lines?
The justices may ask themselves whether the choice to have judicial elections—rather than some other selection method—relaxes the reflexive resort to stare decisis. Voters chose judges with a markedly different judicial philosophy. As agents or trustees of the people, will the justices perceive that as a call to depart from past decisions?
Such a position would find support in the text of our state constitution. Unlike the federal constitution, our state constitution invites judges to reconsider precedent. The Declaration of Rights instructs our officials, “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” We’ve had this provision with us since the founding.
Yet tugging the other way is the virtue of stability. Courts have many questions to answer, and rarely is it a good use of time to reconsider issues already decided.
Besides, judicial opinions induce reliance. The other branches of government often take steps in reliance on judicial decisions, even if the governor or legislature disagrees with the decision. The business of government moves on. And reliance interests are at least as great for private parties, who may order their economic interests based on a rational prediction of legal stability going forward.
Reliance interests grow with time. Will the incoming justices find reliance on decisions that are less than a year old? A swift overturning of recent precedents could lead to a different criticism: politicization of the courts. Yet these recent opinions received political criticism when they were issued. The justices may view reversal of recent decisions as restoring the separationof powers, not exacerbating politicization.
Anecdotally, to this attorney, it doesn’t seem like non-lawyers have much interest in precedent as precedent. What they instead care about is the result, whether they agree with it or not. Take, for instance, the public discussion of the Dobbs decision from the Supreme Court of the United States. The public discussion focused on whether there should be a constitutional right to an abortion, not on whether that Court was wrong to revisit the question.
For now, we wait and see how the new Court will apply stare decisis. My guess is that we’ll learn soon enough.
Troy Shelton is an appellate partner at Fox Rothschild LLP in Raleigh. He helps trial attorneys win on appeal in state and federal court.C