Christopher Brook is a Raleigh-raised “double Tar Heel” (UNC undergrad and law — it’s big deal in the “Old North State!”) who served on the North Carolina Court of Appeals from April 2019 through December 2020 after Governor Roy Cooper appointed him to fill the seat of retiring Republican Judge Bob Hunter. Before the bench, he was legal director of the ACLU of North Carolina from 2012 to 2019, a staff attorney at the Southern Coalition for Social Justice in Durham, and an adjunct professor at Carolina Law. He’s a partner at Patterson Harkavy LLP and teaches constitutional law at North Carolina Central University School of Law.
Chris and I graduated from Broughton High School in Raleigh, class of 1998. From there, we both went to UNC-Chapel Hill — and he stayed to finish law school. The 2028 election cycle will put three of the five Republican-held seats on the North Carolina Supreme Court on the ballot, and Chris is gearing up to run for one of them.
Our conversation covered the appointment process, Lund v. Rowan County, Florida v. Jardines and the legal limits of the “knock and talk,” State v. Carter and last year’s State v. Rogers decision overruling it after thirty-seven years, the Leandro school-funding case that the NC Supreme Court tossed out last month, Harper v. Hall and partisan gerrymandering, the speech restrictions on judicial candidates under the Code of Judicial Conduct, the Elon Musk-funded Wisconsin Supreme Court race of last spring ($100 million spent!), and the work-related complications arising from cycle after cycle of partisan judicial elections. That’s a lot of work!
On How One Becomes a Judge in North Carolina
North Carolina has run partisan judicial elections for all statewide appellate seats since 2018. Until 2022, when a vacancy opened mid-term, the governor filled it however he saw fit. The Republican-controlled legislature has since altered the system so that any vacancy gets filled from a list of three names submitted by the party of the departing judge. In 2019, that wasn’t the law yet, and a Carolina–Auburn loss in the Sweet Sixteen served as the soundtrack to Chris’s vetting interview.
“I submitted some material for vetting purposes and then had an interview during March Madness with Governor Cooper on the phone for about an hour that concluded with Carolina losing that night to Auburn. Auburn made a lot of three-pointers, and Governor Cooper and I concluded the conversation by talking about Carolina. Today, I obviously would not have been appointed because I’m a Democrat, and the Republican Party would not have provided my name to Governor Cooper.”
The 2020 election didn’t go his way. Republicans won every statewide judicial seat. Then-Chief Justice Cheri Beasley, who had a good deal of name recognition, lost her race by only 401 votes. Chris’ race was also close, but he lost by considerably more.
On Lund v. Rowan County
In the Establishment Clause case Chris argued for the ACLU at the Fourth Circuit, the Rowan County commissioners had been opening their meetings with sectarian Christian prayers led by the commissioners themselves, then asking attendees to stand and join in. Chris lost the original three-judge panel two-to-one. However, well-respected University of Virginia School of Law grad and Reagan appointee J. Harvie Wilkinson III — once on the Bush short list for the seat that went to John Roberts — dissented. The full Fourth Circuit then granted en banc review and ruled ten-to-five for Chris’s clients. The Supreme Court denied cert in 2018 over a Thomas dissent (Thomas, it seems, has big plans for the Establishment Clause).
“My joke was that I won the last establishment clause case that a litigant will ever win in the United States of America, a case called Lund v. Rowan County.”
“Judge Wilkinson is legendary on the Fourth Circuit as a Reagan appointee. On many issues he is quite conservative. I think in a lot of ways he is the old-school, judicially modest conservative. He clerked for Justice [Lewis] Powell on the Supreme Court.”
“What Judge Wilkinson said in his opinion was, listen, these prayers are oftentimes beautiful, and they oftentimes comport with my views, but they are coercing people to participate in them, and they’re coercing members of the public to adopt these views or signal to the decision-makers on the dais that you have adopted these views.”
The judge Chris frames Wilkinson against is University of Chicago-educated judge James Ho on the Fifth Circuit. The contrast is between the old, judicially-minimal conservatism of Wilkinson (respect for stare decisis, deciding only what needs to be decided) and what Chris calls activism in service of political ends.
“To the extent judicial activism means anything, it’s that [justices like these] are judicial activists because they are very much trying to use the law for political ends.”
On the Mansion, the Moat, and the Alligators
Chris wrote 97 opinions in 21 months on the Court of Appeals. The one he is most pleased with is a Fourth Amendment knock-and-talk case where he got to insert what is now known to anyone who has read it as the alligator-moat footnote. The doctrinal frame comes from Florida v. Jardines, Justice Scalia’s 2013 opinion holding that the implied license that lets visitors approach a front door — Girl Scouts, trick-or-treaters, the mailman — extends to police but does not extend to bringing a drug-sniffing dog onto the porch.
“In this case, law enforcement did not have a warrant but believed somebody was dealing marijuana. And at night, on my birthday, December 16, they came across this guy’s front yard, ran across the front yard as he was backing his car up out of the driveway. They ran past two no-trespassing signs. They never went to the front door. They surrounded his car and blocked his car. They didn’t have a warrant. And they said that this was a knock and talk.”
The state’s lawyer, at oral argument, told the panel the result might come out differently if the homeowner had built a moat full of alligators. Chris seized upon this.
“At oral argument, the state suggested the outcome might differ if the officers had seen the no-trespassing sign, crossed over a moat filled with alligators, and scaled a fence that surrounded the defendant’s property. The defense similarly argues that defendant did not revoke the implied license to approach his front door because, in part, he did not have a fence surrounding his property. We need only note in response that the protections of the Fourth Amendment extend to us all, regardless of our ability to invest in physical barriers and reptiles.”
There’s a class point behind the wisecrack.
“This putting up no-trespassing signs is the working-class version of having a moat, of having an alligator, of having a fence. Not all of us can afford those sorts of physical impediments. And your rights shouldn’t turn on your ability to make those sorts of investments.”
On State v. Carter and the End of the Robust North Carolina Exclusionary Rule
For thirty-seven years, State v. Carter (1988) held that the North Carolina Constitution’s analog to the Fourth Amendment did not permit a good-faith exception to the exclusionary rule. The state legislature tried to legislate around it in 2011. Conservative state supreme courts let it stand for nearly four decades. Chris himself published a North Carolina Law Review article on Carter in 2021. Then last year the current 5–2 Republican majority overturned it in State v. Rogers.
“We had a relatively progressive Supreme Court in the 1980s in North Carolina, and there was a case called State v. Carter that explicitly rejected the good-faith exception as incompatible with the North Carolina state constitution. So from 1988 until last year, we did not have a good-faith exception. The current Supreme Court, five Republicans, two Democrats, overturned Carter after nearly forty years.”
“I think the current court is a standard deviation more conservative than previous court iterations even of conservative iterations of the North Carolina Supreme Court. But also a much more aggressive court. If you think of judging as two principal axes — one ideological, one temperamental — I think the current Supreme Court is both ideologically quite conservative and has a very aggressive temperament where they don’t have much or any respect for precedent or disagreement.”
He offered an interesting note about the state’s cruel-and-unusual-punishment language that I hadn’t encountered before.
“The Eighth Amendment in the federal Constitution prohibits cruel and unusual punishment. In the [North Carolina] state Constitution, the language is cruel or unusual punishment. But our state courts have interpreted ‘or’ to mean ‘and.’”1
On Writing an Entire Opinion
The single opinion Chris wrote start to finish, out of the 97 his chambers produced, was an Eighth Amendment case involving a 17-year-old defendant sentenced to life without parole (“JLWOP”). The line of U.S. Supreme Court cases on juvenile sentencing — Roper, Graham, Miller, Montgomery — requires trial courts to consider a defendant’s youth before imposing JLWOP. The panel split 1-1-1 going in. Chris was reversing the trial court. The judge in the middle ultimately joined him.
“I knew that case law from previous practice, and I wanted to get the case right. I knew it was a contentious case based on oral argument. It was pretty clear to me that the panel had split 1-1-1, where I was going to reverse the trial court and another judge was going to uphold the trial court. There was a judge in the middle who I thought was going to lean towards me, and ultimately she did join my opinion. But I wanted to make sure we put our best foot forward.”
The other 96 opinions had clerks writing the first draft, with Chris doing his usual heavy editing. After all, he’s the son of an English teacher and a journalist, and he tries to write the way Justice Kagan said she writes — for a reasonably engaged reader of a magazine like the New Yorker.
On Leandro
Last month, the NC Supreme Court 4-3 dismissed the Leandro case, the thirty-two-year-old education-funding suit that had established North Carolina children have a constitutional right to a “sound basic education.” Chief Justice Paul Newby’s majority opinion ruled the trial court had lacked jurisdiction and vacated nine years of orders, including the 2022 ruling that had directed $1.75 billion in school funding.
The Code of Judicial Conduct restricts what judicial candidates can say about sitting judges and pending cases. Chris walked through where the line appears to be, using Leandro as the example:
“What if you come in and say, ‘You know, the Supreme Court gave short shrift to precedent and gave short shrift to what every North Carolina Supreme Court before has said, which is that children have a right to a sound basic education in North Carolina and that that right is enforceable by the courts. The North Carolina Supreme Court let them down when they threw the Leandro litigation out, making it harder for students to vindicate their rights and get a quality education.’ Is that okay? It’s a fine line, but that would seem to be on the acceptable side.”
He made then made a point about partisan gerrymandering, where the new Republican majority on the NC Supreme Court reheard and reversed Harper v. Hall in 2023, four months after the previous court had decided it the other way, and paved the away a 10-4 Republican congressional delegation in a purple state where statewide races consistently come down to a couple of points.
“When Democrats controlled the North Carolina Supreme Court, they interpreted the state Constitution to prohibit extreme partisan gerrymandering in the drawing of political lines in our state. And what did Republicans do when they got control of the state Supreme Court? They overturned that precedent. We went from having a 7-7 congressional delegation, seven Republicans and seven Democrats, reflecting how moderate the state actually is, to a 10-4 congressional delegation, which is in no way reflective of the state of North Carolina.”
“The reason that it is Speaker Mike Johnson today instead of Speaker Jeffries is that North Carolina Supreme Court decision that netted Republicans three seats in the House of Representatives.”
More On What You Can and Can’t Say in Judicial Ads
The judicial speech restrictions regarding political advertising are somewhat ambiguous, but certainly more forgiving in states with all-in partisan elections like North Carolina. Justice Allison Riggs, the Democrat who survived the closest-of-close 734-vote fight with Jefferson Griffin and watched her opponent try to invalidate 60,000 ballots over six months in 2024–25, ran ads in 2024 mentioning her status as the only woman of childbearing age on the court and a post-Roe world.
“Justice Riggs, who won and retained her seat on the state Supreme Court in 2024, highlighted repeatedly in her ad that she favored — that she believed in women’s constitutional rights and in respecting women’s ability to make choices. She highlighted that she was the only woman on the North Carolina Supreme Court of childbearing years and talked about a post-Roe world. A reasonable viewer could view that she obviously is not saying — and she did not say, and would not say, because every case is different [saying how you’d rule on specific cases is a no-no everywhere] — that she is going to rule for anybody challenging restrictions to abortion. But the language is signaling openness to those sorts of challenges.”
The Republican equivalent is usually “pro-law-enforcement,” “pro-public-safety,” “law and order.” Chris thinks that side of the line may in some ways be further over it, because law enforcement is an active party in many of the cases that come before judges.
“Saying that you’re pro-law-enforcement seems to come in the vicinity of saying, ‘Gosh, I’m going to lean in this direction in those sorts of cases.’ And surprise, surprise, the judges and judicial candidates who say those sorts of things tend to be more friendly towards law enforcement in criminal cases.”
On the Money
Chris raised three-quarters of a million dollars for his 2020 Court of Appeals race and eschewed television advertiements, because that level of fundraising was too small to do statewide TV at any volume that mattered. The 2026 NC Supreme Court races will cost somewhere between seven and eight figures per campaign, by his estimate. The 2028 cycle, when control of the court is on the ballot, is a different animal entirely.
“I would assume you’re looking at over a hundred million dollars spent on the three state Supreme Court races in 2028.”
“The judges themselves will probably raise only a small fraction of that money. The vast majority of the money will be outside ‘dark’ money that you might have no clue about.”
“Think about Elon Musk’s participation in the Wisconsin Supreme Court race last year. He was the biggest benefactor of the Republican running for the Wisconsin Supreme Court [yet his $25 million bought him nothing, as his candidate, Brad Schimel, lost handily]. But it could be like that, and [unless they announce it], you don’t even know that it’s Elon Musk or Peter Thiel or whoever funding that stuff.”
The judges themselves raise money from three main sources.
“Who I could raise money from is family members, which means asking my mom for money. From people I went to law school with, or college, or high school with — old buddies. And then I could raise money from people who knew why the North Carolina Court of Appeals was important. And who is that? Lawyers who appear frequently in front of the North Carolina Court of Appeals. So you’re asking your mom for money. You’re asking a buddy you went to law school with, who recently went through a divorce, where you’re like, ‘Hey, how’s Melanie doing?’ And he’s like, ‘Oh, we just got divorced.’ Or you’re talking to a guy who had a case in front of you six months ago that you decided. All of those are complicated!”
The Brook’s 2020 strategy involved micro-targeting: they focused on 100,000 independent voters who were going to vote for Roy Cooper for governor but weren’t registered Democrats. These voters — overwhelmingly suburban women — got three direct mailers featuring Brook’s Tar Heel bona fides and Cooper’s endorsement. He outperformed the Democratic ticket on the Court of Appeals line by close to a percentage point.
“Governor Cooper was able to win office despite the fact that President Trump won the state. There were obviously Cooper-Trump voters. I didn’t have enough money or enough of a brand with the voters of North Carolina to quite get there. The overarching political dynamic ended up controlling my race.”
Relatives of mine on the eastern North Carolina side voted that split ticket without thinking twice about it. Cooper for governor, Trump for president, and on down the rest of the ballot in whatever direction felt right that morning. That is the brand of voter Chris’s strategy was trying to peel off, and there are fewer of them every cycle.
On the Indoor Kid and the Outdoor Kid
The partisan-elected judiciary requires two opposite skill sets. In chambers, the work is sitting with the record and writing opinions for nine hours straight. To win the seat that lets you do that work, you will likely have to spend your evenings shaking every hand at a county Democratic men’s club and your weekends dialing for dollars.
“You have to be the ultimate indoor kid and the ultimate outdoor kid. When you’re in chambers writing opinions, getting things right, faithfully applying the precedent, understanding the nuance, factual record, et cetera, you need to be the ultimate indoor kid who is comfortable sitting and reading and writing for nine hours at a time. But then five o’clock rolls around and you need to walk down the street to the Wake County Democratic Men’s gathering that evening. And you need to be the ultimate outdoor kid.”
“What I had seen on the appellate courts — and now trial-court judges are elected on partisan labels as well — is that you get folks who emphasize the outdoor-kid component over the indoor-kid component. You get politicians in robes.”
For the historical model of good politician turned good jurist, he points to Earl Warren, whose political skills produced the unanimous decision in Brown v. Board of Education. The judge he actually admires — as do I, simply because he was so out of the mainstream — is Justice David Souter, the Bush appointee who reportedly didn’t know what Coca-Cola was when he got to the Court.
“Souter is, to me, the ultimate indoor kid. And there should be space. There should be space for indoor kids. And fascinatingly, he actually wasn’t an indoor kid. He was a huge hiker. He was an outdoor kid in a way. Loved hiking Mount Washington. But there should be space for people you can’t necessarily imagine hobnobbing Bill Clinton-style with every human being in the judiciary.”
Chris has the nonpartisan Oliver Bateman Does the Work endorsement, for what little it’s worth (currently $0), and I told him so.2 We will follow how he fares in 2028!
Many such cases. See, for example, this tidbit about Indiana’s apparent “jury nullification” clause.
During the recording, I didn’t ask Chris about the argument for de-robing judges that legendary judge Jerome Frank advanced in his 1949 book Courts on Trial (as a means of “equalizing” the playing field, among other critiques — it’s worth a read, so click here to check out chapter 18). Afterwards, he confirmed that he, like me, would be fine with that reform. Frank: “The courts should feel obligated to make themselves intelligible to the men on the street or the subway. Here the robe has its effects: Unfrock the judge, have him dress like ordinary men, become in appearance like his fellows, and he may well be more inclined to talk and write more comprehensibly. Plain dress may encourage plain speaking.”
