Justice Berger Channels His Inner Scalia in Voter ID Dissent

The late United State Supreme Court Justice Antonin Scalia was justifiably famous for his sharp dissents.

Justice Phil Berger Jr. seems to have channeled his inner Scalia in his dissent in Holmes v. Moore, a case in which the lame-duck North Carolina Supreme Court voted 4-3 on party lines to overturn the state’s voter ID law.

Berger’s take on the court’s majority making up discriminatory intent in the voter ID law:

The plain language of S.B. 824 shows no intent to discriminate against any group or individual, and there is no evidence that S.B. 824 was passed with race in mind, let alone a racially discriminatory intent. The majority relies, as it must, on a misapplication of relevant case law and on its own inferences to reach a contrary. [¶ 89]

On the majority upholding an erroneous lower court opinion:

Rather than recognizing the legal errors committed by the lower court, the majority side-steps these issues in order to affirm the trial court’s factual findings, which are themselves unsupported by competent evidence. [¶ 122]

On the majority making up the rules as they go along in election cases:

The majority here declines to consider the competency of the evidence or the sufficiency of the factual findings below, accepting instead the conclusory findings of the panel without scrutiny. Supra ¶ 83. It is notable that this same majority, on this very day, is releasing an opinion in which it explicitly reweighs evidence, upends factual findings, and overrules legal conclusions made by a trial court. See Harper v. Hall, 2022-NCSC-121, ¶¶ 94–102. The logic-fluid view of factual findings from the trial courts in these two cases today demonstrates that the majority is more interested in outcomes than consistency. [¶ 136]

With the Republican sweep of Supreme Court elections last November, we will soon see more of what Justice Berger’s majority opinions look like.