By Troy Shelton
The career of the North Carolina Supreme Court’s junior associate justice has been one of constant learning — and he’s had lots of opportunities for that.
“I’ve had to start over at each job I’ve had and learn a lot,” said Justice Trey Allen. “I like to learn. I can’t get enough of it, apparently.”
Allen’s legal career started as a judge advocate general officer in the Marine Corps. He didn’t intend that destination when he started at the University of North Carolina School of Law, but he found himself suddenly called to serve. He went on active duty in 2000, and deployed to Iraq in 2004 after the U.S.-led invasion.
His career took many twists and turns from there. In 2005, he clerked for the then-junior associate justice at the North Carolina Supreme Court, Paul Newby. “As far as we know, this is the first time a sitting justice has had a former law clerk join the court as a colleague,” Allen said.
After clerking, Allen joined the education law practice of Tharrington Smith in Raleigh. The practice is particularly broad, Allen explained. “You’re dual-hatted. You’re partly a general counsel, so you give advice to board members and administrators about issues that have not yet entered litigation. The other half of the job is as defense counsel because school systems are sued quite a bit.” The lawsuits range from slip-and-fall cases to constitutional disputes, with matters pending before agencies, state courts and federal courts. The practice “will definitely stretch you.”
In 2013, shortly after becoming a partner, Allen gave up the perks and pay of private practice to scratch a longtime itch to teach. When a position opened at the University of North Carolina School of Government, he “couldn’t resist” applying. “I’ve never made a smart financial decision, and it appears that I never will,” Allen said with a laugh.
From there, he focused his scholarship and teaching on local government law while redoubling his commitment to his wife and children. A father of five, he traded his late-night phone calls and busy travel schedule for some uninterrupted family time.
The next job change found him. After his election as chief justice, Newby invited Allen to be the general counsel to the Administrative Office of the Courts. A few months into the job, Allen decided to run for the Supreme Court.
Allen recalled that decision as a “huge lift.” He had no political background, so he had to learn how the political parties work, how to campaign and how to fundraise, all the while doing his day job as general counsel. Allen went on to unseat incumbent Justice Sam Ervin.
Since returning to the court about 20 years after his clerkship, he’s found that many things remain the same. Although he’s found that the technology has markedly improved — gone are the days of opinion drafts being physically circulated — he feels that there’s still room for improvement on that front.
Allen brings to the court his judicial philosophy. For constitutional disputes, he considers himself an originalist. “For me, the art of judging, on constitutional questions, is applying the original understanding to new circumstances in a way that is faithful to that original understanding,” he said.
As for statutes: “It’s the text that governs. It’s not my role or the role of the court to rewrite it and turn it into something that the legislature didn’t intend,” he said. “I’ve only been on the court for eight months, but there have already been cases in which I felt like I had to vote a certain way because of the law, even though I didn’t necessarily like the result. And I don’t think you’re a very good judge if you like every decision you make.”
A central principle for Allen is the sovereignty of the people, whether that is exercised through our state and federal constitutions or legislative enactments. “The authority we exercise as judges is borrowed authority. We have to remember that,” he said. When judges step beyond their “neutral role of applying the law in a dispassionate way,” they infringe on the authority of other branches and ultimately “the sovereignty of the people,” Allen explained.
The analysis, however, is different for common law cases. “I feel a little more latitude there. I still think adherence to precedent is important because uniformity in the law is important,” Allen said. “But we have more flexibility to deviate from our own precedents to accommodate current realities than we do when it comes to constitutional and statutory interpretation since we’re just modifying the decisions of our court. It doesn’t implicate separation-of-powers issues.”
Court and politics
Allen knows there have been complaints about the court becoming too political. In March, the Supreme Court overruled two precedents from late 2022, after the general election flipped the partisan makeup of the court. But for people who criticize either the 2022 or 2023 decisions, he encourages them to read both sets of opinions and decide whether the principles at stake were being correctly applied.
Even though Allen was in the majority in the 2023 opinions, he doesn’t consider the overruled opinions from 2022 as “political or politically motivated.” He doesn’t ascribe bad faith to these justices with whom he had disagreed. Instead, he believes those justices simply have “different judicial philosophies. I think that’s the right way to look at the cases. I think they’re just a product of genuine differences of opinion about the role of the Court.”
When he’s not on the bench or reading a brief, you’re likely to find this lifelong learner with a book in his hand. As an adult, he taught himself Latin. During our interview in his chambers, Allen pulled from his bookshelf a 19th-century edition of the Vulgate — an early Latin translation of the Bible.
“I had always been interested in Latin, but it was never taught anywhere,” he said.
Allen explained his decision to learn Latin as spurred by his conversion to Catholicism in 2006. He is the only Catholic member of the court. And, as far he knows, he’s “the only statewide Catholic elected official” in North Carolina.
Besides reading, Allen said his children’s hobbies occupy most of his free time. Four of his children practice Brazilian jujitsu. He’s had two jujitsu lessons himself, but the jury’s still out on whether he’ll stick with it. “We’ll see how it goes,” Allen said.
If the past is a predictor, I suspect it will go well. This lifelong learner has a knack for seeking out and pinning down new challenges, whether on the mats or before the court.
Troy Shelton is an appellate partner in Raleigh at Fox Rothschild. He works with trial attorneys to win on appeal in state and federal courts.