Carolina Democracy

Special Episode: Carolina Forward Judicial Forum

March 20, 2023 JD Wooten Season 2 Episode 4
Special Episode: Carolina Forward Judicial Forum
Carolina Democracy
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Carolina Democracy
Special Episode: Carolina Forward Judicial Forum
Mar 20, 2023 Season 2 Episode 4
JD Wooten

Today's special episode features highlights from a judicial forum hosted by Carolina Forward earlier this year with Justices Sam Ervin IV and Anita Earls. They talk about the makeup and function of the NC state courts, the increased politicization of the courts, the increase in partisanship around the Courts, and the importance of the rule of law and precedent in a healthy democracy.

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Contact Us: jd@carolinademocracy.com

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Show Notes Transcript Chapter Markers

Today's special episode features highlights from a judicial forum hosted by Carolina Forward earlier this year with Justices Sam Ervin IV and Anita Earls. They talk about the makeup and function of the NC state courts, the increased politicization of the courts, the increase in partisanship around the Courts, and the importance of the rule of law and precedent in a healthy democracy.

Resources:

Contact Us: jd@carolinademocracy.com

Follow Us:

Support the Show.

Sam Ervin: You don't overrule things you disagree with lightly. You do it only in very rare instances, not a matter of saying, oh, well we would've decided that case differently if we had been there at the time it was decided and therefore let's overrule it. The ability to overrule decisions is not an invitation to get rid of something just because you disagree with it.

[music transition]

 JD Wooten: Welcome back to Carolina Democracy, I’m JD Wooten, and today we’ve got a special episode featuring a judicial forum hosted by Carolina Forward earlier this year. The entire event with introductions, the panel discussion, and some Q & A ran about an hour and half, but we’ve trimmed that down by half for today’s episode. Since that’s still a fair bit of time compared to our usual episode targets, I’ll keep my updates short. 

If you enjoy this episode, of course you should share it with all your friends just like you do every week, hint hint, but make sure to also visit carolinaforward.org to get on their email list for future events. Just in the last couple of months they’ve had special events covering public education in North Carolina, the judiciary, 2022 election analysis, and more. In fact, there’s another virtual this Tuesday, March 31st with Tom Bonier, CEO of TargetSmart, who has been widely credited for helping debunk the “red wave” media narrative of Republican invincibility in 2022, and helped predict major Democratic midterm wins across the country by tracking voter turnout of key demographics. I’ll leave links in the show notes if you’re interested.

Next, the North Carolina Supreme Court heard oral arguments last week, or I should say re-heard oral arguments, in the gerrymandering and voter ID cases. As I’ve said before, the fact that the Court even took these cases back up just months after their original decisions, despite exactly zero new evidence or new arguments, is highly unprecedented. As the pro-voting groups argued to the Court, “The legislative defendants play a cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review.” Basically, the GOP legislators are hoping that the newly elected GOP majority on the Supreme Court will turn its back on the rule of law and overrule itself based solely on the fact that the composition of the Court has changed.

My guess, for whatever that’s worth, is that the newly elected majority will take the unprecedented step of overturning the previous rulings and tries to make a big deal about their duty to correct manifest errors of law and judgment or something like that. To be clear, it’s not a manifest error of law or judgment when you simply don’t like a prior ruling and would have ruled differently. Make sure to pay careful attention to Justice Earls and Justice Ervin talk about the rule of law and the importance of precedent a in a moment for more insight on this topic.

Anyways, who knows, maybe I’ll be pleasantly surprised that I’m wrong and the Court will instead rule that since nothing has changed since the original opinions were issued just a few months ago, they should have never even reheard the cases and they’ll reaffirm the prior decisions just like centuries worth of precedent dictate they should. I’m not going to hold my breath though. I’ll leave links in the show notes to some good summaries of the oral arguments from Democracy Docket and Politco, and we’ll save a deeper dive into those case for another day, perhaps when we have the opinions.

That’s enough from me for today. Hope you enjoy this special episode and again, if you want to tune in for events like this when they happen, sign up to get regular updates from Carolina Forward at carolinaforward.org, including announcements for events like this. Now here’s the forum with Justice Sam J. Ervin IV and Justice Anita Earls.

[music transition]

Blair Reeves: My name is Blair Reeves, I'm the Executive director of Carolina Forward. I'm very pleased to see you all here tonight. I'm honored that we have Justice Anita Earls, former Justice Sam Irvin on the call, and my good friend JD Wooten here, who is going to moderate our discussion tonight about the future of North Carolina's judiciary. JD I'm gonna hand it over to you here to kind of to set up our discussion tonight and maybe talk a little bit about our guests and, and maybe introduce yourself as well. 

JD Wooten: Certainly. Well, thank you Blair. I thought we'd just kick off real quick with justice Irvin as the first member of AR Supreme Court. Maybe you could give a couple minutes and share with anyone that may not know your long history on the bench. 

Sam Ervin: Is that another way of commenting on my age JD? 

JD Wooten: Only your experience, sir.

Sam Ervin: Okay. At any rate, it's great to see everybody. And after looking around and seeing who's on the call, it's good to see so, so many longtime friends. For those of you that don't know me, I'm a native of Morganton. I'm a product of the public schools in Burke County. Graduated from Davidson College and Harvard Law School. I practiced law for almost 18 years in Morganton, when, which I met a number of people on the call during that process. Then served on the Utilities Commission, the Court of Appeals, and lastly, the Supreme Courts. I appreciate you including me on the call, and I look forward to, to hearing my erudite and learned colleague justice Earls tell us what's going on.

Anita Earls: I am incredibly honored to have the opportunity to participate this evening, and as I look across the screens, and I did scroll across to see so many people who, who I admire some leading lights of our legal community across the state and people who have been role models and inspirations to me. I'm, I'm very humble to, to have this opportunity. My, my career, I came to North Carolina in 1988 and except for a brief stint at the US Department of Justice in Washington, DC and at the Lawyers Committee most of my 30 year career litigating civil rights cases has been in North Carolina whether within private practice with the Ferguson Stein Law Firm at, at the UNC Center for Civil Rights and then having established the Southern Coalition for Social Justice. So I, around in 2018 that was the time, not ever, but in recent times that Supreme Court seats were partisan. And I feel very strongly that public education and informing the public generally about our courts is squarely within our obligation as elected judges. And so I, I am, I'm happy to be here to be able to share what's going on in our courts, and obviously in a way that is not commenting on any particular individual case that's pending before us. But with that background, I'm, I'm excited to have this conversation. 

JD Wooten: Thanks so much, justice Earls. I think maybe a real quick overview. The North Carolina courts, as opposed to our federal courts, we've got several levels, two different trial court levels, two different appellate court levels. And you know, and what most people think about constitutions and constitutional questions, it's the first thing they think when they see on the news is the US Constitution. But especially from your perspective on the North Carolina Supreme Court, we have a pretty important constitution here in our own state that that court has the opportunity to protect a lot and to interpret a lot. So I'm very curious in all of that, if you want to take a few minutes to kind of explain some of those intricacies and perhaps come around to helping us understand the role of the North Carolina Supreme Court and the North Carolina Constitution in everyday North Carolinian lives in protecting rights.

Sam Ervin: Well, I'll start off and then she can correct any errors that I make and if, if, if we disagree, go with what she says. But at any rate as you indicate, we essentially have a four tiered court system in North Carolina. We have two trial courts and two appellate courts, the trial courts and the district courts. The district courts handle misdemeanor criminal cases lower dollar civil cases, and most importantly, family law and, and juvenile cases. The superior courts are the upper level trial court that handles felony cases higher dollar civil cases in, in most administrative review matters. The appellate courts the, the, the lower one, and I've served on both of them. The court of appeals consists of 15 members. It hears most appeals. The Supreme Court, which consists of seven members, is the highest court in the system. And it Consists of seven members. It considers a wide variety of cases, but among those are the constitutional cases that you mentioned. The North Carolina Constitution dates from 1776. It has gone through, depending on how you want to count two sets of amendments either three or five iterations. The current constitution which reflects the original Declaration of Rights, updated in language and the structure adopted in the 1868 Constitution was adopted in 1971. The North Carolina Supreme Court is the final authority as to what that constitution means. 

Anita Earls: I think the only thing I'll add is you know, we all know that, that most people, if they are gonna come in contact with the court system, are going to be in state court. If, just, if you look at the number of filings, so whether that's civil filings or criminal cases vastly more in state court. And obviously people interact with our trial courts more than our appellate courts, but this is where people most likely will come in contact with the court system. And there are important ways that in the past, the North Carolina Supreme Court has found greater protections under the state constitution than under the federal Constitution. That has happened in voting rights in fourth Amendment law, and most recently under the eighth Amendment cruel and unusual punishment. The federal Constitution says cruel or unusual. Ours, constitution says, cruel and unusual punishment are banned. but our court has set out protections that the US Supreme Court has not yet articulated. So not only can the state constitution provide greater protection of individual rights than federal constitutional guarantees, but sometimes we are deciding things that kind of fill in the gaps that the federal courts haven't finally determined.

But the other thing that I can update people here on, and this is a report I made last week to the Bar Association. But we are seeing the new majority on our court fundamentally altering the relationship between our state Supreme Court and our State Court of Appeals. Our Court of Appeals the 15 member court. They hear cases in panels of three. And again, if you have a case in state court and you end up having to appeal, you're most likely gonna get your answer from the court appeals, you know, they hear many more cases than ever reach our court. when they send in a panel of three, if one judge dissents under our current statutory scheme, that gives you the right to appeal to our court. And in, in addition, a lot of the decisions that the Court of Appeals makes when they decide to publish a decision that makes it a decision that has jurisprudential effect and often they are deciding issues that we haven't decided yet or applied our decisions to fact situations that haven't come to our court already. And what the public should know is that there are efforts underway to give our court the power to unpublish a court of appeals opinion. So a rule change they would accomplish that as well as a rule change that would end the right of appeal based on a dissent. So those changes are in the works and one is a rule change that our court can make by majority vote. The other is a statutory change that the legislature would have to make, but that's being pursued right now. 

JD Wooten: Well, thank you for those update Justice Earl. And those would be quite the changes. Going back to the big picture, I think for a second. I think it was sometime last year, maybe I was at another event. And Justice Earls, I think it was you that was speaking and talking about the politicization of our courts and you saw it at multiple different levels. So I'm curious, have you seen any shifts in the way our courts are playing out and doing their jobs in the last few years?

Anita Earls: Well that is part of what I talked about just to sort of distinguish that from partisanship in the decisions that are issued. But what I wanna say about that is that, you know, our court doesn't exist in some kind of bubble that is separate from society and politics generally. And so what I do believe is true based on conversations I've had with justices on other State Supreme Courts, is that they do vary quite a bit in the ways in which they interact with each other, the ways they discuss cases you know, to what degree is there a partisan divide. And so they differ a lot. And that some states maybe because they're not as hotly contested in their state politics generally. But they at least express a, a much stronger commitment to what you might call bipartisanship, you know, working across the aisle within the court. I, I heard from a colleague on the California Supreme Court who talked about how the structure of how they operate, and I won't go into all the details, but the structure of how they operate as a court forces them to reach compromise. And so what is valued in their court is that they come up with a resolution that everyone can live with, even though they have people coming from different perspectives and different points of view. Right now in our politics generally, we don't seem to value compromise and, and meeting in the middle. And the strong polarization within our politics also occurs within our court.

 Why that Should matter to the public in part is because of the message I believe it sends about the enterprise of having a judiciary that interprets the law. And I guess a public example I will give of that small p partisanship is for, for the past two years the Chief Justice and Justice Berger and others have participated in a moot court competition for summer interns. And those summer interns have publicized on LinkedIn "I won the Supreme Court Moot Court Competition." But the interns in my chambers, and for the past two years in the chambers of Democratic justices were not invited to participate. I, I asked the Court the beginning of this year, could we open that up to everyone, and the answer was no. So I can organize a competition and I will, and I'll open it up to everyone, but that is a example of how, and it impacts the profession, right? People who intern at our court or have clerkships that is a gateway to knowledge and experience that then furthers their legal career. And so I really worry about the message. What is most important obviously is are we doing justice for the public? But, but when we, when we operate internally that way, I, I, I fear it sends the wrong message.

Sam Ervin: And I can only speak about the time when I was on the court, but I, I came in 2015 and served until the end of last year. When I got to the court, we had a number of very hotly contested constitutional cases that the court decided by bipartisan votes. For example, in maybe the first year I was on the court, we had, we were by I believe, a seven to one vote, decided that legislation adopted by the General Assembly that created various commissions in the executive or restructured various commissions in the executive branch that dealt with things like mining rights. This was back in the time when there was interest in gas exploration within the state that had a majority of legislative appointees on there. And then Chief Justice Martin, who was a Republican, wrote an opinion, and I think every member of the court joined except one invalidating that set of statutes has violated violative separation powers doctrine. Within the first two years after I was on the court by a vote of five to two, with, again, with a bipartisan majority the court struck down a statute that divested Asheville of its water system without any compensation or anything of that nature on the ground that it was violated to provision state constitution prohibiting certain local acts from being enacted. Even more recently a bipartisan majority of the court upheld the right of the general assembly to require confirmation of the governor's cabinet appointments, subject to the possibility that there might be an as applied challenge, if there was an abuse of that authority by the general Assembly.

Unfortunately we've seen fewer and fewer bipartisan votes in the opinions in recent years. And I think that that tends to suggest that the court is not having that kind of bipartisanship, and it makes us look as if we are a partisan institution. And I regret that as somebody who tried pretty hard to, to reach cross party lines the entire time I was on the court. You know, we need to do more of that rather than less. We are supposed to be a legal body, not a political body. And you know, I think to the extent that we don't act like that, then I think that harms the institution and I think it harms the legal system at the state.

JD Wooten: Well, thank you for that. let's go with the partisanship side of this then, if you will, for a moment. And at the beginning, Justice Earls mentioned that 2018, correct me if I'm wrong, that was the first time that the State Supreme Court had been back to partisan elections. But for a long time they were not partisan, and now they're partisan again. And so my question would be, do you feel like there's been an overt push towards partisanship over the last several years, maybe from outside the court or from within the court, or the influences? And I know Justice Ervin having just gone through a campaign, maybe you could speak to some of the other external influences that aren't always seen, like the money that's flowing around these judicial elections? 

Sam Ervin: Well, you know, we began electing judges with the 1868 constitution. That was an approach that was adopted. If you read the debates in that convention, that on the day that it addressed the, the selection issue, the idea was if we elect judges, they then will not be subservient to either the legislature or the executive branch because the only other real options for selecting judges were either a gubernatorial appointment or legislative election. The judicial elections in this state were partisan until beginning in the late 1990s, we switched to nonpartisan. Different courts went from partisan to nonpartisan in different years, but by 2004, everything was nonpartisan. We've now totally gone back to partisan elections. The general assembly in 2016 made everything partisan again, that law was enacted over the governor's veto. I make no bones about the fact that I think that was a bad idea. What we saw with partisan elections in the late nineties, and I was practicing law in Burke County and involved in party politics at that time, was that nobody knows who we are. It's very difficult to, to establish any kind of independent identity. And so the only thing that people can see about you on a ballot in a partisan judicial election is what your party registration is. And so what inevitably happens is that whichever party has a good year wins all the judicial races. That's what was happening in the late nineties. We moved away from partisan judicial elections in part to try to get some stability in the judicial system because you couldn't keep a job once you got it, depending on the partisan tide. When we moved back to partisan elections in 2016, we were the first state in a century that did that. We're seeing the same thing again. Whatever party has a good year wins all the judicial basis. That is not a way to run a judicial system, and so I think it's unfortunate. I think it makes it very difficult for people that develop a career in appellate judging. I think it leads to instability and I think it does tend to foster the election of people who may not be interested in serving as career appellate judges in deciding cases based on the boring things like what the law is.

Anita Earls: I have a slightly different perspective in that I would say that I would really caution us not to mistake the symptom for the cause. I think it is perfectly possible to, to run a political campaign as a member of a political party, a statewide campaign in a state this size with the number of voters that we have to reach, that it is entirely possible to do that and then conduct yourself once you're in the institution in a nonpartisan way. I think those things are possible and I think that we also could see that people elected in nominally nonpartisan elections, were running on very partisan platforms and then act in the partisan way once they're elected. So it seems to me, and the other fact that it is relevant to my mind coming from a, I mean, remember for the majority of the 30 years that I was a civil rights attorney and a voting rights attorney, I was in a context where I was acting in a nonpartisan fashion. I was protecting voting rights in a nonpartisan organization and concerned about the voting rights of everyone, no matter what political party you belong to. And so I feel a deep commitment to the right to vote and what it means to our democracy and the importance of every voice being heard in all elements of our democracy.

And so it is significant to me that when we had the experiment of the Court of Appeals races being partisan and the Supreme Court race being nonpartisan, when Mike Morgan ran in 2016, there were Court of Appeals races on the ballot, his race was on the ballot, the Court of Appeals candidates had a D or an R after their name. The Supreme Court candidates did not Michael Morgan was not identified as a Democrat on the ballot. In that race, a full half a million voters voted for the court appeal, did not vote for Supreme Court. So if you think about roll off and how it typically happens, I mean, I could give you the numbers for 2022. Most people vote for the top of the ticket. The few thousand don't go down to the next, and you know, there's drop off all the way down the ballot. It is like a political science anomaly that you had voters, skipping the Supreme Court race and voting for the Court of Appeals, and I think that that is a reflection of what justice Ervin just said. You know, people don't know who we are. And so the party labels are their way of identifying what we stand for. And I do think that there are important values that all of us bring to the work of being a judge and that you know, if party labels are what informs voters that could be useful information until we have some other system of better informing people. I could talk about campaign financing and what happened in our statewide appellate races when there was public financing of our judicial races. But I think an informed electorate is better than people skipping over the, the race on the ballot. The real question is, once we elect people will they have the integrity to rule in a fair and impartial way not governed by party politics. And, and so to my mind this is what we should be holding our electeds accountable to and that's where the challenge is.

JD Wooten: Justice Ervin, any follow up on that? 

Sam Ervin: I guess where I may disagree with my colleague and friend Justice Earls a little bit is, I mean, my experience now having run in both a nonpartisan and a partisan election is that party label trump's everything in these races, and it sends a signal to voters that you should look at judicial candidates as if they were partisan. And yes, the dropoff problem is a real one. I mean, I've run in those races. I've won one and lost one at the Supreme Court level when, when there was a significant dropoff problem. But I'm not sure the solution to dropoff is to tell people what party somebody's from because then what you see is you get a whole bunch of people who were not voting cause they didn't know what the party affiliation of the candidate was, and you then give them the party label. And I will tell you that having run in the past in nonpartisan elections with fairly significant support from people who were identified with the other party, that disappeared. To be sure Anita's correct when she says that the, that, that that parties played a role in these elections before. They certainly did, there's no question about that. But I think when what you tell voters is that this person is one party or the other, you see what we just saw in the 2022 election, every democratic judicial candidate with one in exception got 47 point something percent of the vote, regardless of qualifications, regardless of the nature of the opponent, and all of the nominees of the Republican party got 52 point something percent of the vote. That tells me that the voting, that what was cast with the voters voted on the basis of party identification. Do we want that kind of judicial elections? My opinion is that we shouldn't. However, we're not going to change. The only way it can be changed is for the general assembly to decide that they don't wanna do it that way. My sense is that the leadership of the General Assembly wants partisan judicial elections. They like the outcome that they've gotten so far and therefore they have no incentive to change. And so where I think we're gonna wind up with is a system in which you have two party slates running against each other and both of them are are sending some message that says if you vote for Democratic or Republican judges, you get x. I'm afraid we are inevitably heading in that direction in which candidates run almost point blank say, if you vote for me, I'm going to rule X direction when I get a chance, when the case comes before me. And once we go down that road, then we really do have a, a court that is politicized and not making legal decisions. Hopefully we're not there yet, but that's the direction that partisan elections are gonna push the system I'm afraid. 

Anita Earls: And I guess, let me just add one little other fact, and that is Donna Stroud's election in this 22 cycle where she received 38,000, almost 39,000 more votes than all of the non Beasley vote in the Senate race. and in her election, the roll off was 43,000. So 43,000 fewer people voted, and she got more votes not only than Ted Bud, but more votes than all the non Beasley votes. So there was some Beasley-Stroud voters, and there's a whole bunch you can talk, you know, every election is unique. There's a whole bunch you can talk about. I feel like you can't solve a problem until you know what the real cause is. And it just feels too easy to say the reason we have an increasingly partisan court is because we have partisan elections. And my sense is the reason we have an increasingly partisan court is because of the personnel on the court and because of the partisanship of our politics and the divisions and the extreme polarization of our politics. I'm not talking about like if I could design the ideal system, I think there should be partisan elections. I'm just talking about what is the cause of what we're seeing right now in our state because I think you have to diagnose the illness in order to cure it. 

JD Wooten: All right, I think this is great and I think that we're gonna have to have an entire podcast episode on Carolina Democracy, just on this topic. Maybe a whole series on it. And I love the fact that we have two justices who work together on the bench, having a spirited conversation with a little bit of disagreement, but also collegially, maybe some others in the world can take little notes on this. I'm gonna leave that right there and move on to another part of this. Something that I think they've seen a lot, stare decisis, the rule of law, the proper role of precedent and as we're seeing this increased politicization and partisanship in the courts, I fear that at least in the public perception, there's becoming more and more association with, you know, okay, so the majority flips and the opinions flip or something along those lines. I'm curious from your perspective, if you could talk about the importance of stare decisis, the role of precedent, and what that should and can, and does play in our judicial system?

Sam Ervin: Anita, have at it, I've talked too much already. 

Anita Earls: No, well, this is one of those topics where I can give the history and you can, you can talk about the rest. I, I just wanna remind us of Stevenson line of cases because that was a court that found that the redistricting plans were unconstitutional under the state constitution because they didn't comply with the whole county provision. There were two decisions that got to the State Supreme Court. And in the first decision Justice Parker dissented. And in the second decision, there was no immediate reversal, but there was a second decision. And I just find compelling, she starts out, although I continue steadfast in my views as expressed in my descending opinion, I acknowledge that the holding in the first case that I also descended from is law of the case. She acknowledged that she didn't agree with it, but it was the law now that she needed to apply. She had other reasons for continuing to disagree, but that's an important I think example of historically the understanding of what it means once the court has reached a decision. And, and I guess the other thing I'll say is that in my view, this is also about equal justice. Because if what the law is is gonna change depending on the personnel on the court within a matter of, you know, just, a short period of time then, then that means that, you know, people are not getting the same treatment, right. One person files a lawsuit in one year, they're gonna get one legal rule. The court changes, new legal rule, different person files a lawsuit, they're gonna get a different result. And that, I, I think that this notion of stare decisive is meant to help guarantee that there is equal justice under the law. And so to me that is part of why the doctrine matters.

Sam Ervin: And I think it matters for another reason too. I mean, after all, the whole reason that we have a legal system is so that people will know what they can do or not do. I mean, we have laws in order to, to provide, you know, the individual members of society with guidance as to what's permissible and what is not. And in order to do that across a wide spectrum of cases, you have to have consistency in the decisions of the courts. And so the courts have adopted the doctrine of stare decisis for the purpose of saying in effect, and once a court speaks, that rule is applied in the future in all similar cases, so that we have the equal justice, not just between different types of litigants, but also between litigant and litigant over time. Now, it is certainly true that courts have the, the ability to overruled their prior decision. Stare decisis assumes that, however, the ability to overrule cases is not just cart blanche to say, I didn't like this earlier decision and therefore I'm going to continue to disagree with it, and then maybe I'll get enough votes to get a different outcome. I mean, I've certainly done, like Anita described former Chief Justice Parker's doing. Once I failed to persuade my colleagues of the correctness of my position, I tended to say in effect, okay, I lost that one. And it's my duty to apply that decision going forward. Stare decisis and the exception to it that allows overruling is not an invitation to people who did not like a prior decision to just get rid of it immediately. Instead you're only supposed to overrule the prior decision under well-established North Carolina law. I'm looking at a decision that my grandfather wrote back in the early 1950s in a case called State v. Ballots in which they did overrule a prior decision in which the court said, first of all, that it's got to have been significantly, legally an error. And secondly, the perpetuation of the prior decision has to work a grievous wrong. So it's gotta be just bad, bad, wrong legally, and also has got to you know, cause serious injury to somebody. So that means you don't overrule things you disagree with lightly. You do it only in very rare instances. And at least the court in, in my career as a judge, I certainly voted to overrule a couple of prior decisions, but we pretty much all agreed in most instances that those decisions were were subject to being overruled. It was not a matter of saying, oh, well we would've decided that case differently if we had been there at the time it was decided and therefore let's overrule it. And so again, if we start seeing, you know, the ability to overrule decisions is not an invitation to get rid of something that just cause you disagree with it.

JD Wooten: So maybe wrapping that up I do wanna circle back to this interpretation question. You know, different law professors will call it different things. You'll hear different people in the media talk about different canons of interpretation. You know, justice Ervin, you were talking earlier about what were the framers thinking at the time they drafted this, and now we're also considering questions of stare decisis, you know, what was the prior bench thinking when they drafted this opinion? I've recently came across an interview with Washington State Supreme Court Justice, talking about, in his opinion the importance in the duty of the court to correct a systemic perpetuation of wrongs. I'm curious from your perspective, how do you balance those considerations and judicial philosophies of originalism, textualism, correcting manifest errors, writing the wrongs of the past, so I thought that might be a good place to bring it back. 

Anita Earls: I do think that to my mind, what what is most important is what can people, like all of you on this call, do to hold our court accountable? I feel like the whole judicial philosophy discussion is really a smoke screen. You can talk about party labels, but the whole you know, originalism, and I'm a constitutional conservative, those are really just labels to signal an actual sort of partisan, because when you look at what the rulings actually are I, I think there's real arguments we made that there's no consistency and those labels and this discussion of judicial philosophy actually isn't very meaningful. 

And so, what should we as a court be doing? Again, you might hear the difference between myself and Justice Ervin, but I do think that we owe deference to the years of legal wisdom that has come before us, but we also owe the obligation to the citizens of the state to bring our best judgment about how the law should apply in any particular facts situation. And that that always does involve a judgment call to some degree. It's not math. And we're not calling balls and strikes. I, I heard someone else say actually what we're doing is defining the strike zone, right? Like there's more to it than just saying you're in or out. We're actually saying what is in or out. So what I really care about is how can voters and the public hold us accountable? And, and, you know, at the end of the day, are we, those of us in this institution, are we gaining the trust and the faith and the confidence of the public? Do we have a justice system where people say, I got a fair shake. Whether they won or lost, they feel like they were heard, they feel like they were treated fairly. Because we exist to mediate and resolve disputes in society, and, you know, if we're not doing that in a way that contributes to the legitimacy of this institution, then we're not serving our democracy. So I know those maybe maybe that's not as clear and simple as I'm a constitutional conservative, but I think that's the enterprise that we're engaged in. and what I hope is that we can do more to find ways through activities like this group, to find ways to inform the public and make us more accountable to what you've elected us to do. 

Sam Ervin: And I would certainly agree and have said many times that judging is not an objective mathematical or formulate kind of a process there. There'd be no need to have people doing it if there was not some requirement that there be judgment exercised by the people involved. However it's also incumbent upon the people who are exercising those judgments to follow the rules that exist in the system, to apply them fairly and impartially to recognize that you've got to, on occasion do things that You wouldn't do yourself if you were in the legislature or if you were involved in, in writing a constitution. Because once you start substituting your own version of what's right, fair, just true, whatever words you want to use, we've then gone through a system in which all it matters is whoever the judges are at any particular time. And that's not a system that operates on any kind of legal basis. unfortunately, given my sense that we have these partisan elections are going to be with us I think that unfortunately the kind of campaign that I ran last time is probably not one that's gonna work in this environment. I tried to talk about what was important, what judges did, what it was important for judges to do, that judges shouldn't be political. And you can see what happened and the same thing happened in 2020. And so, you know, one of the things that everybody on this call needs to think about is what do we do differently going forward? And I think it's, you know, as, as a lifelong registered democratic, if somebody who served as the county chair of a Democratic Party in Burke County back from 89 to 93, I think it's gonna be incumbent upon democratic candidates to come up with something that can be used to justify voting for democratic judges. What do democratic judges stand? We tried telling them we're fair and impartial and follow the law, and that doesn't seem to work against the kind of messages that are being used. I don't know what that message is, I don't know that I would be a good exponent of it given the way I've run my campaigns in the past, but I'm afraid that's how we're gonna have to operate.

The other thing that's got to be done is, is to force something to be done about turnout disparities. And that's something that a political party's got to do. But in this election, 58% of the registered Republican voters turned out 51 point something percent of the registered democratic voters turned out. If we are gonna have partisan judicial elections it seems to me the only way that we're gonna get anybody to move off of that system is for both parties to be highly competitive and at some point they'll all realize this isn't a good system and we've gotta deal with it. But I, I think in, in the short term messaging has got to change and voter turnout has got to improve. And until those two things are done this system is gonna produce the kind of results it's produced the last two times. But I do think that in the short term, that's what's got to happen.

JD Wooten: And I'll follow with one thing. I appreciate those comments greatly on, on both of your accounts and just a plug for the Supreme Court and going to actually read the source documents, read their work as Justice Ervin once pointed out to me, you know, they're public. You can go online and read them. And if you wanna understand maybe a little more about what Justice Earls was talking about in terms of not calling balls and strikes, but maybe more setting the guardrails, I would encourage to go look at the gerrymandering opinion from last year, and hopefully the justice disagree with me on my reading of their work. But it was kind of saying, we've gotta set some boundaries and here's how we're gonna do it. Now Blair, do you want to jump back in and field some questions?

Blair Reeves: So we're technically at time, but I do think you make made a good point that if both parties are equally competitive in partisan elections, then there can be a discussion about, you know, are partisan elections a good idea for judge races or not? I think that's an interesting debate that I heard both of you, you know going back and forth on, I think it's interesting, but if one party is winning all the judicial elections and they happen to be the party in power in the legislature where under the North Carolina constitution almost all the power is in our state, that party is not going to be interested in changing that system. And so that is to your point, a political question and one that the party has to figure out. 

Anita Earls: So I wanna respond to the question about what would an effective democratic judicial candidate messaging be? And I have not done polling or message testing, but my sense is that the Republican message is justice equals lock 'em up and they hold their candidates accountable for that. Their ads are all about, our guys will lock 'em up. Those guys are gonna let 'em out on the streets. And I think that, that we actually have a much better and broader vision that resonates with voters about what justice really is. And so not just criminal justice, but justice overall. And when I knocked on doors when I was campaigning, time and again from all sorts of different people, like different neighborhoods, people said, I want equal justice, I wanna know, I'm gonna get the same shake as everybody else when I'm in court. And so I think this concept of equal justice under the law, fairness, a system that resolves controversies fair is a fundamental starting point. But then all of the other values that Democrats have generally a around treating people equally, including the importance of diversity. And so, so those are the kinds of things that I think can be effective messaging and if our candidates talk about their background, their record, what they've done in their careers, and how that relates to what they can do on the court, why the courts matter to people's lives, that's my current thought. Again, I haven't done any message testing or polling, but I think that that will resonate with people and that you'll get them excited to turn out and care about our courts. 

Blair Reeves: I would interject here only to say that given the realities of our election cycle, there are many times in which messaging very much does matter, and then there are times that it does not. And I don't care what messaging you have, if you're sitting in Stokes County and you're a Democrat, you're not gonna win. Jesus Christ himself could come down from on high and run as a Democrat in Macon County and get crushed. He'll lose by 30 points. So that's an extreme example, but in the cycle in which we had a Republican lean by depending on who you listen to, two to four points. And were a 50 50 state that kinda leans Republican in many cycles. And their in a Republican year when, which Democratic turnout was down. In that kind of environment. I'm a little skeptical that that messaging was the big problem. 

Anita Earls: So I have two things I wanna say. One is about the Macon County or Stokes County. This, that is where I can go and say to Democrats in that county, I need your vote because in a statewide race, it doesn't matter which county you're in, your vote's gonna help me. And I really think that that is related to my second point, which is I do believe there's the potential for judicial candidates to help turn out and that help the top of the ticket. So they are tied, but I don't think they're necessarily completely determined. And so I think part of what we can do differently going forward is to think more strategically about what are those synergies. So that is to say what audiences can we appeal to as judicial candidates, there are audiences where we can motivate folks that otherwise may not be excited. You can't necessarily raise enough money to have a grassroots ground game the way that other top of the ticket candidates can have. But I think that there's a lot that judicial candidates can do to increase turnout overall. And that's the pitch that I would be making for what we can do as judicial candidates. 

Blair Reeves: Justice Earls, Justice Ervin, last word from each of you? 

Anita Earls: Well, I just wanna thank you so much for organizing this. I wanna thank all of you who stayed on with us this evening. I am excited about the Governor's appointment of Alison Riggs to the Court of Appeals. And her being appointed means that she has to run two years. And she is already underway. Like she's not waiting. She has been sworn in and she is putting together volunteers and will be announcing her campaign very soon, so stay tuned. We have some exciting things to be optimistic for going forward.

Sam Ervin: And I want to join Justice Earls in thanking you for letting us talk with you a bit this evening. These are important questions and while I have been put out to pasture involuntarily, I'm not proposing to go anywhere and look forward to being a part of any kind of improvements that can be made in the court system. The court system is critical to our democratic system of government. That system can't function without courts that do their job. And it's important for everybody involved to do what you can to make sure that we have courts that do what they're supposed to. Thanks to all of you for the help you gave me in my campaign last year, I'd had 23 and a half years of a career in public service and I'm deeply, deeply grateful to the citizens of the state for having given me that chance. And I know that many of y'all were very helpful in both my 2022 campaigns and prior ones, and I want to tell all of you how grateful I am for all that you've done for me. And it's also good to see a lot of longtime friends, and hope to see all a lot of you again again in the future. Thank you. 

Blair Reeves: Thanks everybody for joining us tonight. Make sure to to stay in touch. We'll be doing some more events coming up soon. Jd, thank you so much for moderating as well. I couldn't have done without ya. So thank you for your time, everybody.

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JD Wooten: Thanks again to Justices Ervin and Earls for participating in the forum and to Carolina Forward for organizing it and letting us share it with you today. If you have questions, comments, or suggestions for future episodes, please send me an email at jd@carolinademocracy.com. And as always, please subscribe wherever you get your podcasts and share this episode with a friend. Together, we can achieve a better North Carolina for everyone!

Introduction
Forum
Closing Notes