And the timing is very suspect:
Some legal experts find the change curious in its timing and mysterious in its intent. Certainly it prompts questions: Will this allow Chief Justice Mark Martin, who is now to be in the conservative minority, to pick retired justices to break ties who agree philosophically with him? Is the change even legal under the state constitution?
And, the rule was instituted outside the traditional procedure for such a rule. The state Bar Association typically advises the court on such changes, and that wasn’t done in this case. There were no public comments sought. Mystery leads to suspicion, particularly when a government body is involved.
One possible reason for this rule change can be glimpsed in this scenario: Attorneys seeking a conservative decision could mount a challenge to one of the Democrats (who will be in the majority) to recuse him- or her-self from the case, producing the 3-3 deadlock. Whether there is (solid) grounds for such a challenge may not be as important as the Justice in question wanting to avoid any aura of impropriety, so a voluntary recusal (however unnecessary) might be easier to achieve than the average person would assume. Followed by Justice Martin calling in a reliably conservative replacement. And of course, if the GOP *does* stack the Court in the next few weeks, if one of the five conservatives has a conflict that demands recusal, Martin can still have his majority with a quick telephone call. All that speculation aside, there is no Judicial need for this rule. Split decisions in the NC Supreme Court are rare, and are almost always political in nature. A 3-3 deadlock simply means the lower court ruling will stand, taking the politics out of the Supreme Court's hands.