By Mitch Kokai

There’s no such thing as a “Republican judge” or “Democratic judge.”

It’s a common refrain during judicial election campaigns. The line proves popular among those who want to remove party labels from North Carolina’s judicial races.

Yes, judges should set aside partisan policy positions when considering particular cases. Yet those who affiliate with competing political parties tend to view the law and state and federal constitutions in different ways.

Those differences attract attention in high-profile political cases. Observers also can spot the contrast in disputes with no clear partisan winners and losers.

The North Carolina Supreme Court released three opinions last month that divided its Republican- and Democratic-registered justices. Each case involved criminal law. Each offers useful information to voters choosing between Republicans and Democrats on the judicial ballot.

The State v. Phillips case dealt with the castle doctrine, which protects homeowners who use deadly force against intruders.

All seven justices agreed that a trial judge mistakenly issued jury instructions that suggested defendant Angela Benita Phillips could not use “excessive force” when she shot a neighbor on her front porch.

In a 5-2 decision, the Republican majority sent the case back to the Court of Appeals. The majority determined that appellate judges should revisit whether the jury instructions prejudiced Phillips’ case. Dissenting Democrats would have settled the dispute without additional Appeals Court input.

Beyond that finding, the majority and dissenting opinions offered different takes on North Carolina’s castle doctrine.

“(U)nlike the general self-defense statute, the castle doctrine statute itself provides that it is presumptively reasonable for a lawful occupant of a home to (1) perceive an intruder as a deadly threat and (2) respond to that threat with deadly force,” Justice Phil Berger Jr. wrote for the majority.

Justice Anita Earls’ partial dissent emphasized that the castle doctrine “is not a blank check for violence.” “(L)ethal force is not the appropriate response to a lawful and unforceful entry onto property,” Earls added.

In State v. Applewhite, the court split, 4-2, on whether a defendant could face multiple human trafficking charges for the same alleged victim. Republican justices said yes.

A dissenting judge at the state Appeals Court, a registered Democrat, had argued that human trafficking represented a “continuing offense” that could produce only one charge. That judge would have vacated eight of 12 charges against a human trafficker accused of plying multiple women with heroin to lead them into prostitution.

“The plain language … clarifies that human trafficking is not a continuing offense,” Justice Tamara Barringer wrote for the Supreme Court majority. “The language specifies that violations are separate offenses. The explicit language in the statute that each violation is a separate offense demonstrates that each distinct act of recruiting, enticing, harboring, transporting, providing, or obtaining a victim can be separately prosecuted.”

“The evil sought to be prevented by the legislature is the trafficking of persons for the purpose of engaging in prostitution,” Barringer added.

Again Democratic justices dissented. “Human trafficking is an egregious crime, and that fact does not give this court the right to interpret criminal laws in a way that violates the Double Jeopardy Clause of the United States Constitution,” wrote Justice Allison Riggs.

In State v. Daw, the court split, 5-2, in a case involving the writ of habeas corpus. The writ allows a prisoner to challenge unlawful detention.

Phillip Brandon Daw sought the writ in June 2020. Serving multiple consecutive prison terms, Daw fought his ongoing prison confinement during the COVID pandemic.

A trial judge rejected Daw’s petition. The case could have become moot when prison officials released him during his appeal. Yet the state Appeals Court still issued a ruling in Daw’s case.

The Republican Supreme Court majority responded to that decision. “(T)he writ of habeas corpus is expressly not available in this state to persons ‘detained by virtue of the final order, judgment, or decree of a competent tribunal of civil or criminal jurisdiction,’” Berger wrote.

Daw had no right to seek the writ.

Democratic justices disagreed. Earls criticized the majority’s “ironclad rule” that “extinguishes habeas for anyone imprisoned under a final criminal judgment — no exceptions.”

“Today’s holding is the latest effort to turn the Great Writ into a paper tiger,” Earls added. “It extinguishes an important safeguard of fundamental freedoms.”

We should expect Republicans and Democrats to set partisan preferences aside when judging matters of law. That doesn’t render party affiliations irrelevant.

These three cases remind us that Republicans and Democrats tend to take different approaches to legal and constitutional interpretation. Voters can use that information at the ballot box this fall.

Mitch Kokai is senior political analyst for the John Locke Foundation.