North Carolina Supreme Court - History

Written by Martin H. Brinkley

The legal and historical origins of the Supreme Court of North Carolina lie in the State Constitution of 1776, which empowered the General Assembly to appoint “Judges of the Supreme Courts of Law and Equity” and “Judges of Admiralty.” Until 1799, however, North Carolina had no appellate court. That year, two of the state’s four superior court judges were commissioned to gather at Raleigh to dispose of appeals involving disputed questions of law that had arisen on the judicial circuits.

Although this twice-yearly gathering of trial judges, later named the “Court of Conference,” carried a short docket, its decisions were important to North Carolina’s infant public institutions. In 1805, for example, the Court of Conference declared unconstitutional an attempt by the General Assembly to deprive the University of North Carolina of property it had acquired through its right to escheats (Trustees of the University of North Carolina v. Foy, 5 N.C. (1 Mur.) 58 (1805)). The court’s invocation of the due process (or “law of the land”) clause of the state Declaration of Rights to invalidate a legislative enactment recalled a celebrated en banc Superior Court case that had established the power of judicial review in North Carolina. (Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). Together, these two holdings assured the supremacy of the North Carolina Constitution as the fundamental law of the state.

By an 1805 statute the Court of Conference was renamed the “Supreme Court,” although its composition remained the same: a quorum of Superior Court judges sitting en banc to review their own decisions. In 1810, the court became a tribunal of public record. The judges were ordered to reduce their opinions to writing and deliver them viva voce (orally) in open court, for which they were paid an additional $50 per year. They were also authorized to elect from their number a chief justice. John Louis Taylor, a twelve-year veteran of the North Carolina Superior Court bench, was chosen for this position. By the same act, the governor was directed to procure a seal and motto for the court. Any party in an action adjudicated in the Superior Court could appeal the resulting decision.

Acting upon a bill introduced by William Gaston of New Bern, the General Assembly in November, 1818, created the separate Supreme Court contemplated by the 1776 Constitution. The new tribunal was to be composed of a chief justice and two “judges,” and was commissioned to exercise exclusive appellate jurisdiction over questions of law and equity arising in the Superior Courts. The legislators elected John Louis Taylor, Leonard Henderson, and John Hall the first members of the N.C. Supreme Court. Empowered to elect their own chief justice, Judges Henderson and Hall chose Taylor to fill his old post.

The first meeting of the court took place on January 1, 1819. The court began holding two sittings, or “terms,” per year. The first sitting began on the second Monday in June and the second on the last Monday in December. This schedule endured until the Constitution of 1868 prescribed the first Mondays in January and July for the sittings. Vacancies on the Court were filled temporarily by the governor, with the assistance and advice of the Council of State, until the end of the next session of the General Assembly. The General Assembly’s creation of an independent appellate judiciary ran counter to the reforming democratic spirit of Jacksonian North Carolina. From the beginning opponents objected to the judges’ salaries, which at $2,500 per year were considered extravagant (the governor’s salary was only $2,000). The provision allowing judges to “hold office during good behavior” — a virtual guarantee of life tenure — angered reformers, who thought the Court an elitist institution too far removed from the people. The growing population of the western counties, naturally given to criticizing an unresponsive, distant state government dominated by eastern planters, protested the long journeys their lawyers had to undertake in order to argue cases appealed from the overburdened western circuits to the Supreme Court. Superior Court judges who resented being reversed on appeal added their voices to the chorus of opposition. The enemies of the Court, Senator Gaston predicted in 1821, sought to “make a mob court of it by getting the [Superior Court] judges on it and thus destroying its most valuable features, its perfect separation from the tribunals whose decisions it revises.”

Throughout the 1820s, legislators who believed that the chief justice and the two judges should be elected at large by the people leveled regular attacks at the Supreme Court. The thin reed of legislative support for the Court nearly snapped in 1832, when a bill was introduced to reduce the salaries of the judges from $2,500 to $2,000. This measure and others sponsored by populist politicians throughout the 1820s and 1830s — including a proposed 1835 constitutional amendment dissolving the court outright — were defeated in large measure due to the personal prestige of the judges themselves. The election of former Superior Court Judge and State Bank President Thomas Ruffin to the bench in 1829 effectively ensured the Court’s survival. Ranked by Harvard Law School Dean Roscoe Pound as one of the ten greatest jurists in American history, Ruffin singlehandedly transformed the common law of North Carolina into an instrument of economic change. His writings on the subject of eminent domain — the right of the state to seize private property for the public good — paved the way for the expansion of railroads into North Carolina, enabling the so-called Rip Van Winkle State to embrace the Industrial Revolution. Ruffin’s opinions were cited as persuasive authority by appellate tribunals throughout the United States. The influence his decisions exercised upon the nascent jurisprudence of the states then known as the Southwest (Alabama, Louisiana, Tennessee, Arkansas, and Mississippi), which were settled by emigrating North

Carolinians in large numbers, made Ruffin a celebrated figure at home. Public veneration of the “stern prophet,” as Ruffin was called, preserved his Court from destruction.

The accession of William Gaston, who had sponsored the 1818 Supreme Court bill in the General Assembly, to the high bench in 1833 silenced all but the most radical democrats from openly declaring their opposition to the Court. More statesman than legal technician, Gaston’s concurrence lent weight to Ruffin’s elaborate expressions in politically-charged cases such as Hoke v. Henderson, 15 N.C. (4 Dev.) 1 (1833) in which the Court held that a public office such as that of Supreme Court judge was “property” protected by the “Law of the Land” clause of the State Constitution. The respect Ruffin commanded led the Court to avoid overruling Hoke, which many thought an incorrect decision, until 1903, more than three decades after his death. Together Gaston and Ruffin, whom his colleagues elected chief justice in 1833 (by a coin toss, according to a popular but probably apocryphal account), dominated their less-talented brother judges, rendering treatise-like opinions that inspired one contemporary to exclaim: “No State of the Union . . . not even the United States, ever had a Superior Bench; few ever had its equal.”

The N.C. Supreme Court survived the Civil War, during which its docket was greatly diminished, under the able, if somewhat domineering leadership, of Chief Justice Richmond Pearson. Four major reforms befell the Court as a result of North Carolina’s adoption of a new constitution in 1868. First, in an extensive revision of the judicial article, the Court became a constitutional tribunal that owed its existence to the fundamental law of the state rather than to a legislative enactment. (Although it can be argued that the 1776 Constitution had commanded the creation of a Supreme Court, such an interpretation apparently was never advanced by the Court’s proponents during the antebellum period.) Second, the number of judges was increased from three to five, with the chief justice retaining his title and his brethren receiving the appellation “associate justices.” Third, the selection of Supreme Court judges was removed from the General Assembly and entrusted to popular sovereignty. The justices, including the chief justice, were to be elected by the people to eight-year terms. In the event of a vacancy, the governor was to appoint a locum tenens (temporary judge) to sit until after the next general election for members of the General Assembly. Finally, in a progressive move, the new judicial article merged the formerly separate law and equity jurisdictions of the Court into a single “form of action for the enforcement or protection of private rights or the redress of private wrongs.”

The final decades of the nineteenth century witnessed rapid change in the Court’s membership as conservative Democrats regained political hegemony following the Republican domination of Reconstruction. Additional constitutional amendments reduced the Court’s membership back to three in 1876. By 1888, however, the court’s crushing workload, made public by the early death of Justice Thomas S. Ashe from sheer exhaustion, led North Carolinians to ratify an amendment restoring the Court’s number to five.

By placing the selection of Supreme Court justices in the hands of the populace, the 1868 Constitution presaged — and perhaps rendered inevitable — the appellate judiciary’s descent into partisan politics. In the elections of 1894 and 1896, two Republicans, David M. Furches and Robert M. Douglas (son of Illinois Senator Stephen A. Douglas, Abraham Lincoln’s principal opponent in the presidential election of 1860) were elected to the Court. In 1900 the justices, by a vote of four to one, declared unconstitutional important legislation enacted by the Democratic General Assembly in 1899. The following year Furches, whom Republican Governor Daniel L. Russell appointed chief justice in 1900 upon the death of Chief Justice W.T. Faircloth, and Douglas were jointly impeached by the House of Commons for issuing an allegedly unconstitutional writ of mandamus ordering the state treasurer to pay out money. The indictment was sustained by a majority of the Senate, but did not receive the two-thirds vote necessary to convict and remove the justices from office. Furches and Douglas each served out his elected term and retired from the Court.

The N.C. Supreme Court sat in the State Capitol at Raleigh throughout most of the nineteenth century, retreating to the meeting house of Raleigh’s First Presbyterian Church after the Capitol burned in 1831. The General Assembly passed legislation in 1846 that required the Court to hold an August Term in Morganton for the convenience of lawyers from the western counties. This practice ceased when the outbreak of war in 1861 made travel increasingly dangerous. For the rest of the nineteenth century, “Morganton decisions,” rendered in the absence of a law library, were widely disparaged by the bar. Lawyers sometimes pointed to their provenance as evidence of inferior quality. From 1888 until 1940, the justices successively occupied buildings on the north and south edges of Raleigh’s Union Square. The present courtroom, conference room and the chambers of the justices are on the third floor of the Justice Building (completed in 1940), where the members of the Court work throughout the year.

The lengthy tenures of two chief justices, Walter Clark (1903-24) and Walter P. Stacy (1925-51), saw the Supreme Court through the first half of the Twentieth Century. In 1936 the judicial article of the State Constitution was amended to provide that the Court should consist of a chief justice and not more than six associate justices. The General Assembly enacted enabling legislation the following year authorized the governor to appoint two additional associate justices, bringing the membership of the Court to its current composition of seven members.

The Twentieth Century has called upon justices to delineate the responsibilities and limitations of a burgeoning state bureaucracy. Many of these governmental controversies have at their root questions regarding separation of powers: the principle that the executive, legislative and judicial branches of government should be, in the words of the North Carolina Declaration of Rights, “forever separate and distinct.” At the same time, the Court has continued to labor in the vineyards of the common law, expanding it as required, to meet the demands of a rapidly-changing state. Justices in recent years have occasionally interpreted the State Constitution as a more capacious vessel of individual rights than its federal counterpart.

Public interest in the N.C. Supreme Court as an institution has risen over the last three decades as a series of “first” justices mounted the bench. In 1970, Governor Robert W. Scott appointed his predecessor in the Executive Mansion, Daniel Killian Moore, associate justice. Moore became the first former governor to serve on the Supreme Court. The election of Susie Marshall Sharp — the first woman in North Carolina history to become a judge of Superior Court and an associate justice of the Supreme Court — as chief justice in 1974 marked the first election of a woman to the highest judicial post of any state. In 1983 Governor James B. Hunt, Jr., appointed Henry E. Frye, a Greensboro lawyer, associate justice. Frye is the first African- American to serve on the Court. Justice Frye made history a second time in 1999 when he became the first African-American to serve as chief justice of the Court.

At the suggestion of Chief Justice James G. Exum, Jr., and others, the General Assembly in 1987 established a Judicial Selection Study Commission to review North Carolina’s method of judicial selection and retention. This commission recommended that Supreme Court justices be appointed rather than elected and proposed a constitutional amendment creating an appointive system. An amended version of this plan has passed the Senate repeatedly in recent years, but has failed to garner the necessary three-fifths vote in the House of Representatives. Efforts to eliminate the practice of electing appellate judges will likely continue in forthcoming legislative sessions.

The primary function of the N.C. Supreme Court is to decide questions of law that have arisen in the lower courts and before state administrative agencies. The justices spend most of their time outside the courtroom reading written case records, studying briefs prepared by lawyers, researching applicable law and writing opinions exposing the reasoning upon which the Court’s determinations are based. The concurrence of four justices generally is required for a decision. Each of the seven justices participates in every case, except in unusual situations in which a justice may feel compelled to recuse himself or herself from sitting.

In addition to cases awaiting decision, justices consider numerous petitions in which a party seeks to bring a case before the Court for adjudication. Although most such requests are denied, the justices read hundreds of records and briefs and spend many hours in conference deliberating their merits. Each justice writes several hundred printed pages of opinions each year. These opinions are published in the North Carolina Reports and in several unofficial publications and may be found in major law libraries throughout the world.

The North Carolina Supreme Court Historical Society, Inc., was chartered as a non-profit corporation in 1992 to preserve and celebrate the history of the Supreme Court of North Carolina, as well as heighten public appreciation of the history and achievements of North Carolina’s entire judicial system. The society is composed of judges, court officials, lawyers, and laypersons and membership is open to the public. Contact the Supreme Court Librarian for more information.


Kemp P. Battle, An Address on the History of the Supreme Court, 103 N.C. 339 (1883).
David M. Britt, Update of the History of the Supreme Court of North Carolina, 326 N.C. 839 (1990).
Walter Clark, History of the Supreme Court of North Carolina, 177 N.C. 617 (1919).
John V. Orth, The North Carolina State Constitution: A Reference Guide (1993).

Click Here to view/download an Adobe PDF file of the "North Carolina Reports Volume 113, Cases Argued and Determined in the Supreme Court of North Carolina, September Term of 1893."
Click Here to view/download an Adobe PDF File of the "North Carolina Reports Volume 177, Cases Argued and Determined in the Supreme Court of North Carolina, Spring Term of 1919."
Click Here to view/download an Adobe PDF file of the "North Carolina Reports Volume 327 Supreme Court of North Carolina, 1990."
Click Here to view/download an Adobe PDF file of the "North Carolina Reports Volume 328 Supreme Court of North Carolina, 1991."
Click Here to view/download an Adobe PDF file of the "North Carolina Reports Volume 342 Supreme Court of North Carolina, 1995 and 1996."
Click Here to view/download an Adobe PDF File of the "North Carolina Reports Volume 353 Supreme Court of North Carolina, 2000 and 2001.

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