North Carolina Supreme Court justice files federal lawsuit over investigation into her comments about diversity

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An outspoken liberal justice filed a federal lawsuit against the North Carolina Judicial Standards Commission, alleging an investigation it launched in response to comments she made to the media violated her Free Speech rights.

Key Players

Associate Justice Anita Earls (D), the only non-white woman and soon the only sitting Democrat on the North Carolina Supreme Court, was elected to the position in 2018. Her career has centered around civil rights and social justice issues. In 1998, she was appointed by former President Bill Clinton to serve as deputy assistant attorney general in the civil rights division of the U.S. Department of Justice. 

Established in 1973, the North Carolina Judicial Standards Commission (JSC) considers complaints against, and makes recommendations for the discipline of, judges on the state’s General Court of Justice, and it also serves as an ethics advisory committee. The commission enforces the Code of Judicial Conduct, a 15-page handbook on the practical, ethical, and administrative rules for judges. 

Further Details

On March 20, 2023, Earls received a letter from the JSC informing her that a complaint had been raised against her, alleging that she “disclosed confidential information concerning matters being currently deliberated in conference by the Supreme Court at two public events and to a newspaper reporter.” 

Ultimately, the complaint was dismissed. But on Aug. 15, 2023, the JSC reopened the investigation over an interview Earls gave with Law360, a legal news website, where she criticized a lack of racial diversity among law clerks and lawyers associated with the court.

Analysis from Law360 found that attorneys who argue before the state Supreme Court were 90% white and 70% male, despite census data revealing that the state itself is 70% white and just under 50% male. The article also noted a North Carolina Bar Association study that reveals that while “women make up a majority of our state’s population, barely a quarter of oral advocates at our state’s highest court are women,” and that Black people, who make up a quarter of the state’s population, “represent less than 5% of oral advocates at our supreme court.”

Earls spoke of her own experiences with the lack of diversity of the court, which has 15 law clerks but “no African Americans” and only “one Latina.” She also said that women and people of color who come before the court are more likely to be interrupted by the justices. Earls said she believed the majority white and male makeup of the Court skewed her colleagues’ attitudes toward advocates who argue before it. 

“I think it filters into people’s calculations about who should argue and who’s likely to get the best reception and who can be the most persuasive,” Earls said. She emphasized that she was not claiming this was “conscious, intentional, racial animus,” but rather believed that the court, “like any other court system,” was vulnerable to implicit biases.

Earls also commented on the disbanding of an internal equity committee that analyzed the Court’s hiring practices. It was dissolved in January 2023, when state Supreme Court Chief Justice Paul Newby “refused to reappoint members of that committee,” according to Earls. She described Newby’s decision as “in line with the values of the current party in power in our court,” which was flipped from a 4-3 majority Democratic, to a 5-2 majority Republican, makeup in the 2022 election. She accused her conservative colleagues of paying allegiance to “ideology” rather than the justice system. 

Tension between Earls and Newby has been ongoing for years. Earls co-chairs Gov. Roy Cooper’s (D) task force on racial equity and criminal justice, which was created following the murder of George Floyd by Minneapolis police in 2020. The task force implemented implicit bias and racial equity training for the state’s judges, but Newby ended those training sessions in 2021. According to Earls, Newby opposed the task force because it was allegedly “political” and “improperly insert[ed] the judiciary into the policymaking arena.”

The JSC investigation states that Earls’ comments may have violated the judicial code of conduct, which declares that a judge should not publicly suggest that another judge was making decisions based on an improper basis, unless they “know this to be the case.” The JSC wrote that Earls’ criticism of her colleagues “runs contrary to a judge’s duty to promote public confidence in the impartiality of the judiciary.”

According to the notice, Earls’ comments “appear to allege” that Court justices act “out of racial, gender, and/or political bias in some of their decision making.” 

Outcome

Earls files First Amendment lawsuit

On Aug. 29, Earls filed a federal lawsuit against the JSC, asserting that any attempt to investigate and punish her for speaking out on matters of public concern violated the First Amendment, and that the First Amendment prohibits the JSC from stifling political speech by an elected justice. 

The complaint asserts that Earls’ statements did not reflect a judgment on her colleagues’ “decision-making” in the legal process, but rather their public-policy “decisions” regarding court administration. 

The next day, Black lawyers and civil rights groups rallied in support of Earls. “In her fight for justice for all people, she had the audacity to speak out about sexism and racism,” state Rep. Renee Price (D-Orange County) said at the press conference. “The agenda is to silence Justice Anita Earls and subsequently to silence us.” 

“What we know is that the (judicial complaint) process is being bastardized in an effort to silence Black and brown people. And in this case, particularly, Justice Earls,” said Dawn Blagrove, the executive director of Emancipate NC, an organization that fights mass incarceration.

The North Carolina NAACP called the investigation into Earls “a deliberate endeavor to impede her judicial duties on the North Carolina Supreme Court.”

Mitch Kokai, a senior political analyst at the John Locke Foundation, a conservative think tank, gave an alternative perspective. “I’m not certain if Justice Earls is being singled out. We don’t know which other judges and justices are getting complaints against them,” he said.

As of Oct. 5, 2023, there were no further updates.