COMMENTARY
A conversation with Justice Richard Dietz
“Y
ou’re not going to believe this,” Justice Richard Dietz recalls telling his former colleagues. “It’s true: They really are busy.” Before joining the North Carolina Supreme Court this year, Dietz and his colleagues on the Court of Appeals all wondered one thing: What could the seven justices on the state’s high court possibly be doing all day? In their mind, the Supreme Court simply didn’t take that many cases compared to the Court of Appeals. It Shelton didn’t make sense. But now that he’s a justice himself, Dietz understands all too well the stresses placed on the Supreme Court. In a wide-ranging interview in his chambers, Dietz explains that the Supreme Court must actually do more with less. There’s no office of staff counsel to help with the work. Instead, there are “seven people who all have to be involved in every decision,” he says. That includes a constant flow of petitions. On top of that, the chief justice needs help with administration of justice work. He often requests help from the associate justices on various committees, and recently appointed Dietz as chair of the Equal Access to Justice Commission. Dietz has an “affinity” for the Court of Appeals. He served on that court for more than twice as long as the other justices combined. But during the interview, Dietz says he’s been concerned over recent discussions about eliminating the right of appeal to the Supreme Court based on a dissenting opinion at the Court of Appeals. North Carolina is one of the few states to have such a procedure. He knows the “frustration” that the Supreme Court has had with this proce-
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North Carolina Supreme Court Associate Justice Richard Dietz. Photo by SPICE.
dure in the past. The Supreme Court hasn’t liked that some Court of Appeals judges would use the dissent to “force” the Supreme Court to take a case. Dietz has joked with his former colleagues that what if instead of a dissent creating a right of appeal to the Supreme Court it instead created a right to an en banc rehearing at the Court of Appeals. That would make appellate judges think twice before imposing extra work on their colleagues. Not all dissents are created equally, Dietz notes. A proper dissent, he says, is a “genuine disagreement with your colleagues about some area of the law where reasonable jurists can disagree.” Improper dissents are ones that just disagree with existing law, and the Supreme Court has begun rejecting appeals based on these separate opinions that “aren’t really dissents.” That said, Dietz sees value in the dissent-based appeal right. He has shared fears with his former colleagues that if they abuse the system, “then there is a risk of exactly what we’ve heard people propose now, which is to eliminate it.” Dietz has seen an “explosion” in dissents at the Court of Appeals in the past five years, and he’s trying to figure out why through an empirical, regression analysis. One hypothesis relates to turnover. From 2013 to 2022, the average tenure of a
Court of Appeals judge was nine years. But by the end of 2022, that figure was down to less than four. But he has other theories he wants to test, too. During that same time, elections for Court of Appeals judges had been made partisan. And then there was the pandemic, which separated colleagues from face-to-face contact and could have harmed collegiality at the court. Whatever the cause, he wants to improve collegiality. “I’m so proud of our appellate courts that I just want to do everything we can to help that,” he says. Talk about collegiality isn’t just limited to the Court of Appeals, though. In 2021 and 2022, the Supreme Court issued a spate of controversial 4-3 decisions in politically charged cases. When partisan control of the court flipped after the last general election, the new court composition reconsidered and overturned some of those recent decisions, which brought its own wave of controversy. Some question whether the court has become too embroiled in political controversies. Still, Dietz is feeling “extremely optimistic” about the court’s future. “During the campaign, I was starting to feel a little down because the politics are so negative,” he says. Since starting at the court, he says his
May 2023
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