A property dispute landed Messrs. Willis and Smith in the North Carolina courts in September 1789.
The legal contest arose from Willis’s attempted purchase of land from the absent H.E. McCulloch, who had “carried … beyond the sea” the deed proving his ownership of the property.
With the deed missing, how could Willis prove McCulloch held title to the land and, therefore, possessed the right to sell it, something contested in the litigation?
Willis’s attorneys offered into evidence proof of McCulloch’s longstanding possession of the property and other written evidence of ownership.
Did this evidence properly prove McCulloch held title to the real estate?
Yes, according to the judge who decided the case two months before North Carolina adopted the Constitution and more than two years before the states ratified the Bill of Rights, including the First Amendment.
The court resolved the dispute in a brief opinion: “The evidence is perfectly admissible under the circumstances of this case–and the possession is good evidence of a fee till the contrary appear.”
While three jurists decided cases across North Carolina in 1789, the identity of the judge who decided Willis v. Smith is lost to history: The opinion was issued per curiam — Latin for “by the court,” meaning the decision was attributed to the court itself, as an institution, rather than to a single judge.
This was the first of many per curiam opinions that would fill the North Carolina Reports over the ensuing centuries, the inauguration of what would become a long-standing practice that took root at the very birth of our nation.
North Carolina’s judiciary hasn’t been alone in establishing and following the historical tradition of issuing unsigned opinions on behalf of a court itself.
Perhaps most significantly, the Supreme Court of the United States has also made historic use of per curiam opinions — the first such opinion appeared in 1862 — and in significant cases, too: New York Times Co. v. United States (1971) (allowing publication of the Pentagon Papers over objections from the government that doing so would threaten national security); Buckley v. Valeo (1976) (upholding campaign finance regulations in the wake of Watergate); and Bush v. Gore (2000) (ending the Florida recount in the 2000 presidential election and effectively naming George W. Bush president), to name a few.
Such opinions serve important institutional interests, according to one scholar who argues they help bolster the Court’s legitimacy by allowing it to present itself as “an institution situating itself above politics.”
Judge Learned Hand, one of the preeminent jurists of the twentieth century, spoke of the importance of courts preserving the “monolithic solidarity” that comes from them speaking as an institution, not in the voices of separate judges. (This observation’s empirical validity is open to question, but the validity of the tradition’s rationale speaks to a different issue than the existence of the tradition.)
Chief Justice John Roberts alluded to this institutional interest in recent years when he pushed back against criticism from President Donald Trump that “Obama judges” were seeking to harm Trump’s administration.
Or as now-Justice Amy Coney Barrett explained to senators during her confirmation hearing, “I think the black robe shows that justice is blind. We all address the law the same, and I think it shows that once we put it on, we are standing united symbolically, speaking in the name of the law. Not speaking for ourselves as individuals.”
As required by the U.S. Constitution, the North Carolina General Assembly revised the state’s legislative and congressional districts following the 2020 census.
Predictably, the Republican-controlled legislature drew districts that overwhelmingly favor the GOP: Under the adopted maps, Republicans are likely to win ten or eleven of the state’s fourteen congressional races and retain control of the General Assembly by decisive margins.
Just as predictably, Democrats sued in state court to seek to overturn the Republican-drawn maps. Their lawsuit claims the GOP engaged in partisan gerrymandering by drawing maps with the intention and effect of significantly favoring the Republican Party, thereby depriving the people of a fair chance to choose their representatives. This, Democrats argue, violates a number of provisions in the North Carolina Constitution that guarantee free elections, free speech, and equal protection of the laws. (In another case from North Carolina, the Supreme Court of the United States ruled in 2019 that such claims may not be brought under the U.S. Constitution.)
After filing their lawsuit in November 2021, Democrats asked the three-judge panel assigned to hear the case to temporarily halt the use of the new districts pending the results of the litigation. In early December, the judges declined to do so. This meant statewide candidate filing for the 2022 elections — using the GOP-drawn maps — would proceed as scheduled on December 6.
Then, just minutes before the candidate filing period was to commence, a three-judge panel of the North Carolina Court of Appeals issued a preliminary injunction halting candidate filing to allow litigation over the maps to first run its course. The panel’s order did not identify the judges who issued it or how they voted.
One day later, all fifteen judges on the Court of Appeals voted to reverse the three-judge panel, once again allowing candidate filing to start. Like the panel order from the appellate court, the en banc order did not identify how each of the court’s judges voted.
Plaintiffs then sought relief before the Supreme Court of North Carolina, which entered an order on December 8 once again halting candidate filings and moving the state’s primary election from March 8 to May 17. The justices also ordered the three-judge trial panel hearing the lawsuit to conclude the proceeding and issue a decision by January 11. Lastly, the Supreme Court ordered that any appeal of the trial judges’ decision would bypass the Court of Appeals and proceed directly to it. (The three-judge trial court has since issued its decision unanimously upholding the newly drawn districts, and the Supreme Court is now expected to review the case on appeal.)
The justices’ decision to postpone candidate filing and the primary election was issued “by order of the Court in conference” and was signed by Justice Tamara Barringer, who, as the most junior member of the Court, would traditionally sign such an order. The six-page ruling did not identify how each of the seven justices voted.
Just like the 1789 decision in Willis v. Smith, the Supreme Court’s preliminary order in the redistricting case was issued on behalf of the court itself, not in the name of any particular jurist.
The order’s anonymity was part of a common, unremarkable practice, as Michael Crowell, an expert on the North Carolina judiciary, explained to the News and Observer: “Typically, emergency orders or temporary orders are not signed, and just issued in the name of the court.”
Indeed, the Supreme Court conducts a significant share of its business by such orders. In December 2021 alone, for example, the justices issued 215 unsigned orders on behalf of the Court that addressed a range of issues: denying sanctions and attorneys’ fees, agreeing or declining to hear cases, allowing parties to amend their briefs or the record before the Court, staying the effect of lower court rulings, and dissolving stays of lower court rulings. The justices issued thousands of these anonymous orders over the course of the last year.
Notwithstanding its unremarkable nature, the Court’s order in the redistricting case earned the ire of Congressman Dan Bishop and other Republicans.
“Every election in the state has been suspended, and nobody knows by whom,” Republican state senator Ralph Hise lamented after the order’s release. (Neither Hise nor any other Republican official objected when the Republican-controlled Court of Appeals anonymously voted to allow the candidate filing to proceed unimpeded, reversing the anonymous three-judge appellate panel that voted to halt candidate filing. But they did object to the Democratic-controlled Supreme Court entering the fray with an anonymous order. Partisan-fueled bad faith is so often the air that America’s politics breathes.)
Bishop, who has represented North Carolina in Congress since 2019, first took to Twitter to demand answers from the Court.
“The state Supreme Court cannot shut down an election in North Carolina without any stated reasoning and anonymously,” he tweeted. He also posted a copy of a letter he sent to Justice Barringer and the Court’s clerk demanding to know the vote count among the justices.
On December 22, he made good and filed a lawsuit in federal district court alleging the appellate courts’ anonymous votes violated the First Amendment. (Perhaps aware of the appearance of partisan hypocrisy in criticizing the Supreme Court for its confidential vote while remaining silent about the anonymous vote of the Court of Appeals, Bishop named the members of both courts in his lawsuit.) The complaint argues Bishop has a First Amendment right to know how each of North Carolina’s appellate judges voted on the question of whether to postpone the state’s candidate filing period and primary election pending resolution of the redistricting litigation.
The First Amendment reads in full, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Though expressly limiting the powers of Congress, the courts long ago interpreted the First Amendment as offering protection against governmental overreach by the states and their officials, including state judges.
On its face, the First Amendment would seem to say nothing about accessing information possessed by the government — like the vote tallies Bishop seeks.
But, as the congressman correctly pointed out in his complaint, courts have interpreted the First Amendment as guaranteeing access to some kinds of government-held information.
Bishop cited Courthouse News Service v. Schaefer (2021) in which the United States Court of Appeals for the Fourth Circuit ruled that several clerks of court in Virginia violated the First Amendment by not making newly filed lawsuits publicly available in a timely fashion. (Decisions of the Richmond, Virginia-based Fourth Circuit are also binding in North Carolina.)
In reaching its decision, the federal appellate court cited a two-part test used to determine what access to judicial records is constitutionally protected: “The First Amendment provides a right of access to a judicial proceeding or record: (1) that has historically been open to the press and general public and (2) where public access plays a significant positive role in the functioning of the particular process in question.”
The court continued, “If both experience and logic indicate that a judicial record has in the past, and should in the future, be afforded public access, a qualified First Amendment right of public access attaches to it.”
Let’s concede for the sake of argument that public access to judges’ and justices’ votes regarding preliminary orders — like the ones at issue in the state redistricting case — satisfies the second prong of this test (though, as noted above, that’s a question subject to debate).
The first prong — that of historical practice — presents an insurmountable hurdle for Bishop, and it isn’t even close: There is a long tradition, dating back to the very founding of the nation, by which courts issue decisions in the name of the institution and not over the signatures of particular judges.
Bishop admits as much in his lawsuit, which opens, “This action seeks to establish a First Amendment right to compel public disclosure of the votes of Justices and Judges of the North Carolina Supreme Court and North Carolina Court of Appeals to suspend the 2022 election.” (An important correction: No one has suspended the 2022 election. The Supreme Court postponed it a couple of months.)
The congressman gave away the game in the literal opening sentence of his complaint: He implicitly acknowledged there currently exists no right to access the information he seeks. Rather, he wants the court to create — “establish” — such a right.
People of good faith can argue the wisdom of keeping judicial votes confidential as a matter of policy, but guaranteeing public access to such information would be contrary to longstanding tradition and historical practice, which means Bishop’s demand for such access as a matter of right finds no support in the First Amendment.