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Will courts retain ability to check legislative power?Free Access



Ken Ripley

Years ago, when the heated dispute over merging Nash County and Rocky Mount schools ended up in the legislature, I spent a day in Raleigh covering the issue. When I challenged one of our local legislators that what was being proposed violated the state constitution, the legislator snapped dismissively, “The constitution is what the legislature says it is.”

Apparently, legislators still believe that — and they are as wrong now, and as arrogant, as they were before.



What stirred this pot was the recent decision by the N.C. Supreme Court, which, by a 4-3 partisan split, upheld lower court rulings that the state legislature must appropriate funds to comply with the Leandro ruling 28 years ago.

In the Leandro case, in which several county school districts sued the state, the trial judge ruled that the legislature violated the state constitution’s commitment that all children in North Carolina receive a good education and ordered legislators to beef up school funding across the state to ensure that each child has an equal educational opportunity.

The judge ruled the constitutional standard of equal opportunity would be based on fairly distributed — and adequate — state funding for schools across all the 100 or so school systems. He ordered the legislature to appropriate millions of dollars more to remedy the problem.

The legislators refused to comply with the judge’s order, at least in full. Over the years, as a stubborn — and cheap — legislature appealed and various judges insisted on state compliance, the judiciary has struggled to make the state meet its constitutional obligation. The latest ruling by the state Supreme Court, passed by a Democratic majority over Republican dissent, basically says, “Enough is enough.”

Unfortunately, legislative leaders will likely continue to ignore the judges’ desperate attempts to enforce what they see as the law. And conservative columnists are now arguing that the legislature, not the court, has the sole power to decide what the state spends. They accuse the justices of being activists and breaching the state’s separation of powers. Depending on whether Tuesday’s election changes two justices, a future court might well rule entirely differently.

The details of the Leandro case, particularly the court-imposed remedies, are in fact worthy of debate. And, as politicians on both extremes agree at different times, courts need to be careful that they don’t overstep their role by meddling in policy decisions that are appropriately best left to legislatures. The increasingly and now highly conservative U.S. Supreme Court has been visibly deferential to the politicians’ policy decisions.

But what I’m concerned about is that in recent decades, our legislature has demonstrated a real tendency to ignore the state constitution, especially on funding education, and has shown an amplified arrogance in asserting — by actions if not words — that legislators and not the court have the right to determine what is or is not constitutional.

North Carolina legislative leaders, in fact, now have a case before the U.S. Supreme Court using this actual argument, and if they succeed, it could fundamentally and adversely affect elections nationwide.

On Dec. 7, the high court is scheduled to hear arguments in Moore v. Harper for a likely ruling next spring. In this case, North Carolina Republican leaders are arguing that state courts cannot throw out congressional districts that legislatures draw based on the previously debunked “independent legislature theory.” 

Our legislators believe that only they, not the courts, have the ultimate power over elections, even if their decisions to gerrymander congressional districts violate the state constitution.

Based on past precedents, legal scholars believe the high court will and should reject the independent legislature theory, but the sharp rightward tilt of the court makes them nervous. The court in recent years has already ruled that federal courts lack jurisdiction over state gerrymandering for partisan purposes, and the concern now is that the newly empowered and partisan conservative majority will undermine state courts and constitutions as well.

If that happens, our country will be in even deeper trouble than it already is. Open season on partisan gerrymandering is bad enough, but what ought to terrify us is the idea that legislators cannot be bound by their own state courts interpreting their own state constitutions.

To me, this is a clear breach of powers by the state legislature. In the early years of our republic, it was clearly established that courts are the final word on constitutional questions. If the courts don’t have this authority as a separately established branch of government, then there is no real check on legislative abuse. Our system of “checks and balances,” which has well served this country and state, will not just be weakened, but obliterated.

Judges don’t need to play politician, I agree, but politicians should never be allowed total free rein over their policy decisions — especially when they violate the state constitution, which is the fundamental foundation of North Carolina’s government. The judicial system must be allowed to do its job interpreting and enforcing the law, even if it overrules and inconveniences legislative agendas. Checks and balances.

Obviously, in the latest cases as well as in the comment to me years ago, our legislative leaders still feel unbound by constitutional niceties. Citizens therefore must even more support the power of courts for our own protection, to ensure our constitutional rights and freedom prevail.

Ken Ripley, a Spring Hope resident, is The Enterprise’s editor and publisher emeritus.