The North Carolina Supreme Court has confronted systemic racism, reckoned with the state’s Confederate history, and protected voting rights under the leadership of Cheri Beasley, the first Black woman to serve as its chief justice. Beasley is currently trailing her challenger, Paul Newby, by just 406 votes out of nearly 5.4 million cast. The race will now head into a recount. Newby, a white male Republican who serves on the court alongside Beasley, has loudly and frequently objected to the court’s clear-eyed acknowledgment of racism, using his dissents to attack Beasley, a Democrat, as a judicial activist. If Newby wins, his victory will be a major setback for racial justice in North Carolina.
Newby’s grudge against Beasley has simmered for years. Beasley was first elected to the North Carolina Court of Appeals in 2008, becoming the first Black woman to be elected to any statewide office in North Carolina without first being appointed by the governor. Gov. Bev Perdue elevated Beasley to the state Supreme Court in 2012, and she won reelection to the seat in 2014. When Chief Justice Mark Martin stepped down in 2019, Gov. Roy Cooper selected Beasley to replace him, creating a 6–1 liberal majority. Cooper’s decision angered Newby, who believed he was entitled to the chief justiceship as the most senior member of the court. Newby then took the unusual step of challenging Beasley in 2020, running for her position rather than seeking to keep his own seat.
As Newby fought to seize the chief justiceship from Beasley, the North Carolina Supreme Court addressed a major controversy in the state’s criminal law: what to do about the Racial Justice Act. The act, passed in 2009, allowed death row inmates to contest their capital sentences by providing proof of racism, including statistical evidence. Marcus Robinson, the first person to secure a hearing under the RJA, prevailed after demonstrating systemic racism in the prosecution of capital cases. His evidence included racist handwritten notes by North Carolina prosecutors, in addition to the fact that Black people are substantially more likely to be struck from the jury than all other jurors in capital cases.
Alarmed by Robinson’s success and worried that the statistics he presented would prevent the state from executing any Black person, the newly Republican-controlled legislature narrowed the RJA’s scope and limited inmates’ ability to use statistical evidence to show systemic racism. Yet the next three people to seek relief under the act also succeeded in overturning their death sentences. The legislature then repealed the whole act in 2013, cutting short the appeals in process and reinstating the death sentences that had already been overturned.
In June, the North Carolina Supreme Court ruled that this retroactive repeal violates the state constitution. The majority opinion—written by Justice Anita Earls, also a Black woman—found that the legislature could not “retroactively impose a greater penalty” on prisoners by revoking their right to challenge a racist death sentence. Earls also held that the RJA amendment curtailing the use of statistical evidence could not be applied retroactively. The state, she explained, had given death row inmates “a new substantive claim” in passing the RJA; in seeking to strip away that claim, it violated the rule against ex post facto punishments. Only Newby dissented, accusing the court of “intrud[ing] upon the right of the people” to “decide death penalty policy” and writing that the RJA itself may be unconstitutional.
More than 100 death row inmates had already filed an RJA claim when the legislature abolished the law, and Earls’ opinion allowed them to continue pursuing these claims. But what about the four people who’d already won their cases under the law? In August, the North Carolina Supreme Court ruled that executing individuals who defeated their death sentences under the RJA violates the state constitution’s bar against double jeopardy. This time, Beasley authored the opinion of the court. Her opinion discussed the North Carolina criminal justice system’s persecution of Black people throughout history. It also acknowledged the extensive evidence of present-day racism that Robinson presented at his RJA hearing.
Beasley’s opinion infuriated Newby. In an intemperate dissent, he claimed that the court’s three Black justices “may have a larger purpose: to establish that our criminal justice system is seriously—and perhaps irredeemably—infected by racial discrimination.” Newby accused these justices of “extraordinary judicial activism” that will undermine “public trust and confidence in our judicial system.” And he compared them to King Louis XVI for acting like a “monarch,” huffing that they were “legislating changes in the law from the bench.”
This stark divide between Beasley and Newby—the former recognizing the existence of racism, the latter denying it—extended beyond legal opinions. In June, Beasley delivered an extraordinary speech urging action to eradicate racism in the North Carolina judiciary. “In our courts,” Beasley said, “African Americans are more harshly treated, more severely punished, and more likely to be presumed guilty.” Newby, by contrast, launched an attack on the integrity of Beasley and her court, one with troubling racial undertones. At a campaign event, he derided Earls as an “AOC person,” referencing New York Rep. Alexandria Ocasio-Cortez. “Imagine seven AOCs on the state Supreme Court,” he cautioned. Newby then alleged that Earls’ election to the court was part of “a long-term strategy by Obama and those who were part of his inner circle.”
Although he did not mention Beasley by name, Newby depicted her and Earls—the court’s two women of color—as indistinguishable. He once again complained that the governor named Beasley chief justice instead of him. And he closed by urging progressives to move to another country. “If we’re as bad as the other side says we are,” the justice declared, “I will buy you a ticket to leave. I mean, just leave. You’ve got freedom here in America to leave. We don’t build laws to keep you in. We ought to have a wall to keep you out if you’re trying to get here illegally.” (Newby’s wildly unprofessional comments flouted the North Carolina Code of Judicial Conduct.)
In the wake of the election, Newby has adopted a Trump-like position on voter fraud, asserting without evidence that the state has counted illegal ballots that detract from his total. When vote tabulation was still underway, Newby filed frivolous protests with eight county election boards raising baseless claims of misconduct. (Historically, candidates do not file such protests, let alone in their own races.) He asked these boards to throw out a large number of mail ballots, which skew disproportionately Democratic. The boards rejected his requests after he failed to provide any proof to substantiate his allegations.
Had voters delivered a resounding defeat to Newby, they would have demonstrated that white male candidates can no longer rely on thinly veiled race-baiting. Instead, they split almost evenly, and the race will come down to the wire. If Beasley loses, the North Carolina Supreme Court’s liberal bloc will hold a bare 4–3 majority, since her Democratic colleague, Justice Mark Davis, lost his seat. The future of the court remains uncertain.
And there’s more at stake than Beasley’s career, or even North Carolina’s future. In 2019, the Brennan Center reported that women of color face a number of obstacles in judicial elections: On average, they raise less money than any other demographic group, face more attack ads from outside groups, and are more likely to lose reelection than their white counterparts. They routinely face racist attacks that accuse them of undue sympathy for racial minorities who committed crimes. The few Black women in state judiciaries bring sorely needed perspectives to the bench. Their white colleagues are surely watching Newby’s dog whistle campaign, taking notes from his playbook.
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November 18, 2020 at 06:16AM
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North Carolina’s First Black Female Chief Justice May Lose Her Seat to Aggrieved White Colleague - Slate
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