The race for chief justice, between a former public defender and a former prosecutor, will shape the court’s willingness to advance racial justice.
This is the latest in our series spotlighting state Supreme Courts.
Amid the nationwide protests against police violence last summer, North Carolina Chief Justice Cheri Beasley held a press conference to amplify the call for racial justice. “These protests are a resounding, national chorus of voices whose lived experiences reinforce the notion that Black people are ostracized, cast out, and dehumanized,” she said.
Beasley, who is the first Black woman to serve as chief justice in North Carolina, acknowledged that, in the state’s court system, “African Americans are more harshly treated, more severely punished, and more likely to be presumed guilty.”
Paul Newby, another sitting justice on the North Carolina Supreme Court, has taken issue with Beasley’s statements. “Where’s the evidence that we’re not treating everyone the same?” he asked at a recent candidate forum. Studies show racial disparities at every stage of the criminal legal system, from how frequently Black people are stopped and searched to the severity of the charges they face and the sentences they receive.
Beasley, a Democrat and former public defender, and Newby, a Republican and former prosecutor, are now facing off in a chief justice election that will shape civil rights in North Carolina for years to come.
Instead of seeking another term as associate justice this year, Newby chose to challenge Beasley for the position of chief justice. That put his own seat on the Court up for grabs, and it’s now hotly contested between Democrat Lucy Inman and Republican Phil Berger Jr. In addition, Democratic Justice Mark Davis faces Republican challenger Tamara Barringer.
The Court had a Republican majority as recently as 2016, but Newby is now its lone GOP member. Democrats enjoy a 6-1 majority and will retain their edge whatever happens on Nov. 3. Still, if they sweep the three Court elections on the state’s ballot, they would hold all seven seats. A Republican sweep, on the other hand, would reduce Democrats’ majority to a single-vote margin, 4-3, and put Republicans in a position to flip the majority in 2022. It could also change outcomes on a Court that does not always divide neatly along party lines.
And the stakes of who occupies these seats are clear for racial justice.
Beasley and Newby’s statements are not simply the personal or political views of each justice, carefully set aside when they don their robes. They play out in the Court’s decisions. In the last year, with Beasley as chief justice and with the addition in 2019 of Justice Anita Earls, a longtime civil rights leader, the Court made a series of rulings protecting the rights of Black people against systemic racism in the criminal legal system, which included decisions about whether Black people can be struck from juries, whether they will get a fair trial, and whether they will be executed.
Newby dissented in each of these cases, often alone.
The Court has emerged as a counterweight to the Republican-controlled legislature, which both state and federal courts have repeatedly rebuffed for removing legal protections against racial discrimination and for engaging in discrimination itself.
And it’s also a counterweight to the federal judiciary. Lawyers for the ACLU of North Carolina and the North Carolina NAACP told me that they increasingly depend on the state’s Supreme Court and constitution to protect civil rights, since the federal courts, after four years of Trump appointments, have become increasingly white, conservative, and hostile to their claims.
Whether the Court continues to occupy this role will shape the rights of Black people going forward, both in the criminal legal system and in other areas such as the right to vote and participate in democracy.
In 2009, North Carolina enacted the Racial Justice Act (RJA), a groundbreaking law that invalidated any death sentence if a court found that race played a significant role in the decision to seek or impose the death penalty. The law addressed the reality that a racist system can lead to death sentences even without overt acts of racism in a particular case. It was one of the first laws in the country, for instance, that allowed people to challenge racism in jury selection without having to prove intentional discrimination on the part of prosecutors. Instead, it enabled people to use statistics or other evidence to show a pattern of prosecutors disproportionately striking Black jurors.
In 2011, appearing at a Tea Party event, Newby dismissed the need for such a reform. “It’s as if race were relevant to any of this,” he reportedly said. “I have discussions with people who say that there are too many Black people in prison. I don’t disagree with that, there are. But they are not there because they are Black. They are there because they committed a crime.”
Four people have had hearings under the Racial Justice Act, and all four won their case. A trial court determined that racism had influenced each of their death sentences and it resentenced each of them to life in prison. In other words, Beasley later wrote, “the [Racial Justice Act] worked as intended. Immediately, proceedings initiated pursuant to the Act revealed pervasive racial bias in capital sentencing in North Carolina.”
But these hearings only lasted for a few years. Republican lawmakers, who took control of the legislature in 2011, weakened the law in 2012, restricting the evidence that people could introduce to show racism’s influence. Then in 2013, with Republican Governor Pat McCrory sworn in, the GOP repealed the law entirely. More than 100 other people on North Carolina’s death row had pending claims when the law was repealed. To extinguish them, the legislature made the repeal retroactive.
In two decisions issued this year, both written by Earls, the North Carolina Supreme Court ruled that these people on death row should still get to press their case of racial discrimination. It held that the RJA’s repeal could not apply to people who filed claims while the law was still in effect. That would violate both the state and federal constitutions’ prohibitions of ex post facto laws, the Court said, which bar new laws that change the punishment for acts committed before the law was enacted.
Newby was the lone dissenter in both cases.
The Court also held that the four people who had already received new sentences could not have the death penalty reinstated. Writing for the Court in Marcus Robinson’s case, Beasley provided historical context, explaining how the state’s long, violent history of racism continues to plague its criminal legal system. “The same racially oppressive beliefs that fueled segregation manifested themselves through public lynchings, the disproportionate application of the death penalty against African-American defendants, and the exclusion of African Americans from juries,” she wrote.
Again, Newby dissented, calling the ruling “judicial activism.” This time Justice Sam Ervin IV also wrote a dissent, joined by Justice Mark Davis.
The RJA was an answer to persistent racism left unaddressed. One study has found that in 20 years of capital cases, North Carolina prosecutors struck Black jurors at more than twice the rate they struck white jurors, a disparity that increased when the person on trial was Black. In his RJA hearing, Robinson submitted prosecutors’ notes made during another capital prosecution in the same county. The notes showed that a Black juror with a criminal history was labeled a “thug,” while a white juror with a criminal record was a “fine guy”; another Black juror was a “blk wino,” but a white juror with a DUI conviction was a “country boy—ok.” Other RJA litigation turned up documents showing how prosecutors have been trained to elude allegations of discrimination.
It is of course unconstitutional to strike jurors because of their race, a rule the U.S. Supreme Court announced in its 1986 decision Batson v. Kentucky. And yet to this day, over decades and more than one hundred appeals, North Carolina’s appellate courts have found a Batson violation for striking Black jurors in only a single case—a staggering record even by already poor national standards.
Here, too, the addition of justices more sensitive to claims of racial discrimination has pushed the North Carolina Supreme Court toward a different path.
This year, the Court ruled in two decisions that a trial court was wrong to deny claims that prosecutors discriminated against Black jurors. While the Court did not definitively find unlawful discrimination, it provided guidance on how to assess claims under Batson, providing stronger protections against discrimination, and sent the cases back for further review. Lawyers involved in the appeals called the decisions “historic” and the Center for Death Penalty Litigation said the rulings will “begin a culture change in a state where trial judges routinely dismiss complaints of racially motivated jury strikes without thorough investigation.”
Beasley was part of the majority in both cases, whereas Newby dissented both times.
Racial justice will also be front and center in the North Carolina Supreme Court when it comes to voting rights.
The state’s new voter ID law, for example, is subject to ongoing litigation and could soon arrive at the Court. The state’s previous voter ID requirement, enacted in 2013, was struck down after the Fourth Circuit Court of Appeals found that lawmakers “target[ed] African-Americans with almost surgical precision.” Its replacement is now tied up in court, again, for discrimination against Black voters.
The Court may also hear challenges to the new legislative districts that will be drawn next year based on the 2020 census. In North Carolina, the state legislature creates district maps without governor approval. The previous maps, based on 2010 data, led to years of litigation, including multiple U.S. Supreme Court decisions, over complaints of racial gerrymandering designed to minimize the power of Black voters.
When the state Supreme Court heard these complaints in 2012, Newby refused to recuse himself after the same group that helped Republican lawmakers draw challenged maps, the Republican State Leadership Committee, spent over $1 million to help him win election and preserve the court’s slim conservative majority. He later wrote the 4-3 opinion upholding the maps. Beasley partially dissented, and the U.S. Supreme Court agreed with her in its 2017 decision Cooper v. Harris, which struck down two North Carolina congressional districts as racially discriminatory.
The state Supreme Court could also set definitive limits on partisan gerrymandering, the practice of drawing legislative districts to benefit one political party—one that cannot be entirely separated from race—that North Carolina Republicans have openly embraced. Last year, the U.S. Supreme Court held that federal courts cannot interfere with the practice, leaving state courts as the only forum to bring a legal challenge. Later, a Wake County court, in rulings based on the state constitution, struck down North Carolina’s legislative and federal congressional maps as examples of “extreme partisan gerrymandering,” and Republican lawmakers produced new maps without appealing to the Supreme Court. This scenario could play out again.
These civil rights issues, among others, are likely to come before the Court in the coming years. Nov. 3 will determine whether they are heard by a chief justice who believes that current policies and institutions perpetuate systemic racism, or one still looking for evidence that systemic racism even exists.