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A conversation with Justice Richard Dietz 

By Troy Shelton  

“You’re not going to believe this,” Justice Richard Dietz recalls telling his former colleagues. “It’s true: They really are busy.”  

Before joining the North Carolina Supreme Court this year, Dietz and his colleagues on the Court of Appeals all wondered one thing: What could the seven justices on the state’s high court possibly be doing all day? In their mind, the Supreme Court simply didn’t take that many cases compared to the Court of Appeals. It didn’t make sense. 

But now that he’s a justice himself, Dietz understands all too well the stresses placed on the Supreme Court. 

In a wide-ranging interview in his chambers, Dietz explains that the Supreme Court must actually do more with less. There’s no office of staff counsel to help with the work. Instead, there are “seven people who all have to be involved in every decision,” he says. 

That includes a constant flow of petitions. On top of that, the chief justice needs help with administration of justice work. He often requests help from the associate justices on various committees, and recently appointed Dietz as chair of the Equal Access to Justice Commission.  

Dietz has an “affinity” for the Court of Appeals. He served on that court for more than twice as long as the other justices combined. But during the interview, Dietz says he’s been concerned over recent discussions about eliminating the right of appeal to the Supreme Court based on a dissenting opinion at the Court of Appeals. North Carolina is one of the few states to have such a procedure.  

He knows the “frustration” that the Supreme Court has had with this procedure in the past. The Supreme Court hasn’t liked that some Court of Appeals judges would use the dissent to “force” the Supreme Court to take a case. Dietz has joked with his former colleagues that what if instead of a dissent creating a right of appeal to the Supreme Court it instead created a right to an en banc rehearing at the Court of Appeals. That would make appellate judges think twice before imposing extra work on their colleagues. 

Not all dissents are created equally, Dietz notes. A proper dissent, he says, is a “genuine disagreement with your colleagues about some area of the law where reasonable jurists can disagree.”  

Improper dissents are ones that just disagree with existing law, and the Supreme Court has begun rejecting appeals based on these separate opinions that “aren’t really dissents.” 

That said, Dietz sees value in the dissent-based appeal right. He has shared fears with his former colleagues that if they abuse the system, “then there is a risk of exactly what we’ve heard people propose now, which is to eliminate it.”  

Dietz has seen an “explosion” in dissents at the Court of Appeals in the past five years, and he’s trying to figure out why through an empirical, regression analysis. One hypothesis relates to turnover. From 2013 to 2022, the average tenure of a Court of Appeals judge was nine years. But by the end of 2022, that figure was down to less than four. 

But he has other theories he wants to test, too. During that same time, elections for Court of Appeals judges had been made partisan. And then there was the pandemic, which separated colleagues from face-to-face contact and could have harmed collegiality at the court.  

Whatever the cause, he wants to improve collegiality.  

“I’m so proud of our appellate courts that I just want to do everything we can to help that,” he says.  

Talk about collegiality isn’t just limited to the Court of Appeals, though. In 2021 and 2022, the Supreme Court issued a spate of controversial 4-3 decisions in politically charged cases. When partisan control of the court flipped after the last general election, the new court composition reconsidered and overturned some of those recent decisions, which brought its own wave of controversy. Some question whether the court has become too embroiled in political controversies.  

But Dietz is feeling “extremely optimistic” about the court’s future.  

“During the campaign, I was starting to feel a little down because the politics are so negative,” he says.  

But since starting at the court, he says his experience has been “refreshing.”  

“Although we are dealing with some issues that have a political dimension, the court feels like such an honest place that’s trying to do justice,” he says. 

The court’s conferences are held in private, but Dietz wishes he could share those experiences with the public.  

“I think it would reassure them that the Supreme Court is doing what it should be doing, which is really trying to be this steward of the law for our state and not being political,” he says. 

Dietz also offers some guidance for attorneys on the other way cases usually end up at the Supreme Court: the petition for discretionary review. Anyone who’s practiced in North Carolina for long knows that there are many strands of conflicting case law from the Court of Appeals.  

That problem is understandable: “The volume of cases is just so high that things get missed,” he says, adding that he wishes the Court of Appeals would use its en banc process to clean that up.  

The next best solution is discretionary review at the Supreme Court.  

“That’s one of the things that we’re really attuned to right now,” he says. “We don’t want there to be conflicts in the Court of Appeals.”  

For that reason, practitioners seeking Supreme Court review should think of the petition process “much the same way as a circuit split at the Supreme Court of the United States,” Dietz says, referring to that court’s certiorari process.  

Show us the conflict, says Dietz, and the “chaos it’s causing with lower courts. [Since it’s the Supreme Court’s] responsibility to say what the law is and resolve those conflicts, pointing that out to us is powerful.” 

Dietz also hopes to help the court improve.  

“There were a lot of changes at the Court of Appeals that came because after I got comfortable, I started asking questions, like ‘Why do we do it this way?’”  

Dietz brought welcome changes, such as a switch from the faux-typewriter font of Courier in the court’s opinions to the more elegant Century Schoolbook, which the U.S. Supreme Court uses. He also pushed for transparency in petition panels.  

Dietz plans to follow a similar playbook for the Supreme Court: Settle in, then start asking questions. He’s already interested in making the high court more transparent, like the U.S. Supreme Court and 4th Circuit. 

“For us, it’s so secretive,” he says. “And my understanding is that it’s tradition that the court has been very secretive. But my question is why? If there’s a good reason for it, I can respect that. But if the reason is just ‘we’ve always done it this way,’ that to me is not a reason.”  

Dietz aspires to “an internal operating procedures manual that we can share with the public.”  

During the interview, I scan his chambers. The bookshelves are full — and science fiction novels are prominent.  

“The thing I like about science fiction,” he says after showing me a first edition “Dune” novel, “is that it’s a way to have tough conversations by putting things in a different setting and allowing you to confront a lot of really difficult topics.”  

For Dietz, those tough conversations are an important part of what happens within chambers.  

“It’s a big deal for me to have chambers where we can really be a little idea factory,” he says.  

That requires clerks who can write well and keep up with the justice. But it doesn’t mean clerks telling you what you want to hear. Elected as a Republican, Dietz has two liberal clerks, including one who listed as a hobby on her resume “Elizabeth Warren for President volunteer.” Dietz hired her because she’s a great writer, and that, he says, is something “that makes my life easier.”  

For now, Dietz is just ramping up. Time will tell what Dietz can accomplish with his new colleagues.  

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild. He partners with trial attorneys to win on appeal in state and federal courts. 

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