Republican legislators in North Carolina demand investigation of judge for mentioning reproductive rights

Three Republican state senators in North Carolina have demanded an investigation of state Supreme Court Justice Allison Riggs. The state senators, Buck Newton (R), Amy Galey (R), and Danny Britt (R), claim that Riggs has "blatantly violated" the North Carolina Code of Judicial Conduct. They called for an investigation into Riggs' conduct by the North Carolina Judicial Standards Commission. 

What was Riggs' transgression? She mentioned reproductive rights in a campaign ad. 

Riggs was appointed to fill a vacancy in the North Carolina Supreme Court in September 2023. It is an elected position, and now Riggs is running for a full eight-year term. She is in a closely contested race against Republican Jefferson Griffin, a current member of the North Carolina Court of Appeals.  

In a television ad, Riggs says that "women should be in charge of our own reproductive health care." She notes that the Republican nominee for Governor, Mark Robinson, has supported a total abortion ban and that Griffin, if elected to the North Carolina Supreme Court, "could decide if [Robinson's] ban becomes law." 

In a letter to colleagues announcing their request for an investigation, the Republican Senators claim that the North Carolina Code of Judicial Conduct "prohibits any judicial candidate, regardless of the office they seek, from taking a position on any issue that may appear before the court." The letter was posted online this week by Billy Corriher, State Courts Manager at People’s Parity Project Action.

But the Republican Senators have mischaracterized the North Carolina Code of Judicial Conduct. It does not say that judicial candidates cannot comment on any issue that may appear before the court. The North Carolina Code of Judicial Conduct states that judges "should abstain from public comment about the merits of a pending proceeding in any state or federal court dealing with a case or controversy arising in North Carolina." Riggs’ ad does not comment on any pending court proceeding. 

To the contrary, the North Carolina Code of Judicial Conduct says that a judge seeking election may engage in "constitutionally protected political activity." Stating that you believe that women should be in control of their reproductive health care is unquestionably constitutionally protected political speech. 

The letter from the Republican Senators mirrors criticism of the ad from Griffin during an October 11 debate against Riggs. "We don’t need to be out there telling people how we’re going to vote on cases," Griffin said. "We don’t need to be out there telling folks how another judge is going to vote on cases."

But Griffin himself has made his views on abortion very clear. Last year, the North Carolina Court of Appeals heard a case that "dealt with the termination of a mother’s parental rights because she had committed a crime while she was pregnant." Griffin signed onto an opinion that found the woman's "parental rights could be terminated — even though the child hadn’t yet been born at the time of the mother’s crimes — because 'life begins at conception.'"

The ruling Griffin signed enshrined the notion of "fetal personhood" into North Carolina law. There was widespread outrage about the ruling and its broader impact on the state. In response to the criticism, Griffin and the other judges who signed on took the usual step of formally withdrawing the decision. That means "the potential precedent it had established regarding personhood no longer exists." 

Now that he is seeking a promotion to the North Carolina Supreme Court, Griffin and his allies are attempting to make any discussion of reproductive rights off-limits. 

The politicization of the Judicial Standards Commission

This is not the first time Democrats on the court have been targeted with investigations by the Judicial Standards Commission. In August 2023, North Carolina Supreme Court Justice Anita Earls received a letter from the commission informing her that she was under investigation for suspicion of violating the state’s Code of Judicial Conduct. The investigation centered around comments that Earls, the only Black woman on the court, made about the court’s approach to racial and gender discrimination in an interview with legal publication Law360.

In the interview, Earls was asked about a study that found that attorneys who argued before the North Carolina Supreme Court were primarily white and male. Earls responded that she sees “gender and race discrepancies” in the court caused by “implicit bias.” Earls noted that she thought the court treated white male attorneys with “more respect,” and that there were certain cases where she believed "[her] colleagues [were] unfairly cutting off a female advocate.” Earls also criticized the court’s decision to shut down diversity and equity efforts. 

Earls clarified that she did not believe this was “conscious, intentional, racial animus,” but rather “that our court system, like any other court system, is made up of human beings and I believe the research that shows that we all have implicit biases.” Earls did not discuss any cases that had come before the Supreme Court. 

The Commission’s letter alleged that Earls’ comments “potentially violate[d] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” 

In response to the investigation, Earls sued the Judicial Standards Commission, arguing that the investigation violated her constitutional right to free speech. Earls asked a federal court “to stop any action against her for simply expressing ‘her right to speak on matters of public concern.’” In November 2023, a federal judge rejected Earls’ request for a preliminary injunction to block the investigation. In January, the commission’s investigation was dropped without any discipline against Earls. In response, Earls dropped the lawsuit. 

The North Carolina legislature changed the composition of the Judicial Standards Commission in October 2023, increasing the number of members appointed by Republican politicians. Under the new rules, state House and Senate leaders appointed four judges to the commission, replacing four attorneys chosen by the State Bar. The changes gave “the GOP near-total control over enforcement of judicial ethics rules.” 

The changes were “criticized by former judges, attorneys, experts and state lawmakers for undermining the independence of the judiciary,” Carolina Public Press reported. North Carolina Representative Marcia Morey (D) denounced the move, stating, “We’re kicking off all the lawyers on the commission, the very ones that are in the courtroom, that know the ethics, that know what judges should do and should not do.” According to a 2023 report, North Carolina is one of only two states to not have any attorney appointments on its judicial conduct commission.