North Carolina state Sen. Phil Berger is the father of state Supreme Court Justice Phil Berger Jr.
North Carolina's state Supreme Court currently has a 4-3 Democratic majority. That could change after November.
If Republicans gain control of the court, state Sen. Phil Berger, the president pro tempore, will have a direct connection to the majority.
His son, Phil Berger Jr., is an associate justice on the court.
The younger Berger has refused to recuse himself from cases involving his father.
While the apparent conflict of interest of a father in the legislative branch and a son in the judicial branch of a state's government has come up before, observers say that a Republican majority on the Supreme Court will make the issue much more worrisome, especially given that the elder Berger is set to be a party to lawsuits before the court.
"Even when I talk to my friends and family back home who aren't lawyers or don't follow politics closely, they can wrap their heads around why it's messed up for a son to decide a father's lawsuit," said Billy Corriher, a former lawyer and writer who specializes in judicial selection, voting rights, and the courts in North Carolina.
The issue first arose after the younger Berger was elected to the state Supreme Court in 2020. One of the first cases he heard was a challenge to a voter ID law that a supermajority of North Carolina Republicans, led by the elder Berger, had enacted in December 2018 by overriding a veto by Democratic Gov. Roy Cooper. The law had been challenged by voting rights advocates who claimed it unconstitutionally discriminated against Black voters, and a panel of judges of the Wake County Superior Court agreed.
Challenges to the ruling made their way to the state Supreme Court shortly after the younger Berger was sworn in. Lawyers for the NAACP, which led the legal challenge to the law, filed a motion calling for Justice Berger's recusal.
"Justice Berger should be disqualified because his father is a defendant in this case and thus Justice Berger is within a third-degree familial relationship with a defendant," the motion reads. "The need for recusal is straightforward and obvious when a judge's close family member is a party to the proceeding."
The motion also called for the recusal of Before her election to the Supreme Court, Associate Justice Tamara Barringer had served as a Republican state senator, where she voted in favor of the voter ID law.
While the court was considering how to handle the situation, Republican operatives conducted a campaign to pressure the court to allow individual justices to decide when they should recuse themselves on a case that may have a potential conflict of interest rather than have the whole court make such a decision.
Justices Berger and Barringer dismissed the NAACP's petition on Jan. 7, 2022. "I have concluded that I can and will be fair and impartial" in deciding the case, Barringer wrote. Berger said the same, insisting that "a reasonable person would understand that a suit against a government official in his or her official capacity is not a suit against the individual."
He added: "Indeed, my father's name appears in the caption only as a matter of procedure."
Published with permission of The American Independent Foundation.