When the North Carolina Supreme Court renders judgement, it should generally be the last word on the matter. That decision rendered by the state’s seven justices — regardless of how it might come down — should be above reproach or question of impartiality.
North Carolina’s Code of Judicial Conduct is clear in Canon 3:
“A judge should perform the duties of the judge’s office impartially and diligently. … A judge should be unswayed by partisan interests, public clamor, or fear of criticism. … On motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge’s impartiality may reasonably be questioned, including but not limited to instances where: … The judge knows that he/she, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding ... ”
There is quite legitimate concern over the high court’s impartiality in a high-profile matter before the state’s highest court now — NAACP v. Moore concerning the legality of state’s law requiring photo identification to cast a ballot. State Sen. Phil Berger, R-Rockingham, is not merely a defendant in the case. He was and is, the top leader in the state Senate. He’s outspoken in his views on this matter and its Constitutional standing. He was directly involved in the drafting and passing the legislation. His son, Phil Berger Jr., is a justice on the state Supreme Court — elected to the post last year.
Another justice on the state’s high court also elected last year, Tamara Barringer, is a former Republican state senator who, when serving as a representative from Wake County, voted in favor of putting the challenged amendments on the ballot.
Do justices Berger and Barringer have conflicts in the matter? Clearly. Do those conflicts surpass a threshold of reasonableness to the extent that mandates their recusal from considering the case?
That is the debate. It is unreasonable and unnecessary to suggest or require that the two recuse themselves from all cases involving laws passed by or issues concerning the General Assembly — particularly those under the tenure of Sen. Berger’s leadership (back to 2011) or Barringer’s service from 2013 through 2018.
There are plenty of examples that provide guidance on where these justices should draw the line. Supreme Court Justice Thurgood Marshall recused himself from the U.S. Supreme Court consideration of the case involving Mohammad Ali’s appeal of his conviction for refusing induction into the Armed Services after rejection of his application for conscientious objector. Marshall had been U.S. Solicitor General when the case began. This was highlighted in the recent televised documentary about Ali’s life.
In 2020 Justice Berger, then a judge on the State Court of Appeals, recused himself from consideration of a separate challenge to the voter ID requirement, also a case in where his father was named defendant. He’s already set a precedent for his behavior.
For Barringer, it is clearer cut — akin to whether engineers should determine who was responsible for a wreck involving the train they were driving.
Whatever the state high court decides in NAACP v. Moore, won’t likely be the last word. There undoubtedly will be more legal wrangling in the state and federal judicial arenas. That continued debate should be on the issues at hand — not clouded by continued questions of conflict of interest by the justices hearing the case.
In this case, justice is best served if justices Berger and Barringer step aside.
Today’s editorial is from Capital Broadcasting Company of Raleigh. The views expressed are not necessarily those of this newspaper.