Top North Carolina judge faces potential sanctions for talking about racial discrimination

North Carolina Supreme Court Justice Anita Earls is being threatened with sanctions for criticizing the court's approach to racial and gender discrimination. Earls, the only Black woman on the court, is under investigation by the state's Judicial Standards Commission, a body largely comprised of conservative judges appointed by North Carolina Chief Justice Paul Newby. On August 15, Earls received a letter from the Commission informing her that she was under investigation on suspicion that her comments to a reporter violated that state's Code of Judicial Conduct.

Earls responded on Tuesday by suing the Judicial Standards Commission and all 14 members in federal court, alleging that their investigation is a violation of her constitutional right to free speech. 

The issue centers around an interview that Earls conducted with a legal publication, Law 360, that was published on June 20. During the interview, Earls was asked about a study by North Carolina Solicitor General Ryan Park that found "attorneys who argue before the state Supreme Court are 90% white and 70% male." The reporter asked Earls to explain why so many of the oral advocates who appear before the court are white and male when North Carolina has a diverse population and bar membership. 

Earls noted that none of the court's clerks, a feeder for high-level attorneys who later appear before the court, were Black. She also attributed the racial and gender discrepancies among oral advocates to "implicit bias." Earls said, "there have been cases where I have felt very uncomfortable on the bench because I feel like my colleagues are unfairly cutting off a female advocate." She also noted that "in one case there was a Black woman who argued in front of us and I felt like she was being attacked unfairly, not allowed to answer the question, interrupted." Earls explained that "when the culture is that male advocates and advocates who reflect the majority of the court, white advocates, when they get more respect, when they are treated better — I think it filters into people's calculations about who should argue." 

Earls made clear that she did not believe the issue was "conscious, intentional, racial animus," but "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."

Later in the interview, Earls criticized Newby's decision to shut down "an internal equity committee to look at just the North Carolina Supreme Court and our hiring practices." She also noted that Newby eliminated "a Commission on Fairness and Equity in the North Carolina judicial system" that dealt with "not only how we treat the public but how we operate internally."

These changes came when Republicans gained majority control of the North Carolina Supreme Court. Currently, seven members of the court are Republican. Earls said they "very much see themselves as a conservative bloc" and have an allegiance "to their ideology, not to the institution." 

The article featured an illustration, which is currently on display in the North Carolina Supreme Court, that depicts the seven Republicans as superheroes, working together to vanquish a common enemy. 

Earls observed that, during oral arguments, she is "interrupted by more junior colleagues" and sometimes even by attorneys, which "doesn't happen to my male colleagues." She observed that when Newby became Chief Justice he canceled "implicit bias and racial equity training" in the judiciary system. Critically, "nowhere in the interview does Justice Earls discuss a single case

that has come before the Supreme Court or its decision in such a case."

In the August 15 letter from the Judicial Standards Commission, its chief counsel, Patricia Flood, stated the commission was opening an investigation based on "an interview you since gave to the media in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making." The Commission states that the interview "potentially violates 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.'" The letter advises Earls that "publicly alleging that another judge makes decisions based on a motivation not allowed under the Canons without some quantum of definitive proof runs contrary to a judge’s duty to promote public confidence in the impartiality of the judiciary." This is a serious matter as an adverse finding can include a variety of sanctions, up to and including "removal from the bench."

In the lawsuit, Earls counters that "nothing will undermine public confidence in our courts more than serial burdensome disciplinary investigations into speech designed to inform the public about problems perceived in the judicial system by one of its elected Supreme Court Justices."

Moreover, the lawsuit argues, the Commission does not even cite the section of Code of Judicial Conduct that addresses public comments by members of the judiciary, Canon 7. That section recognizes "the continued requirement that judicial candidates run in public elections as mandated by the Constitution and laws of North Carolina" and explicitly states that a judge may "engage in any… constitutionally protected political activity." Further, Canon 4A — which is also not mentioned in the Commission's letter — specifically states that judges "may speak, write, lecture, teach, participate in cultural or historical activities, or otherwise engage in activities concerning the… governmental system, or the administration of justice." 

Speaking about systemic issues in the justice system, according to the lawsuit, is "core political speech from an elected Justice of the North Carolina Supreme Court." The lawsuit argues that the "First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system. At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so." In 2002, the U.S. Supreme Court recognized the First Amendment right of judges to speak about disputed legal and political issues in Republican Party of Minnesota v. White.

In response to the lawsuit, a spokesperson for the Commission stated it was "statutorily obligated to investigate all instances of alleged judicial misconduct." This is misleading. Any complaint can be summarily dismissed by the Commission's counsel and executive director if it "fails to disclose facts which, if true, indicate that a judge has engaged in conduct in violation of the Code." In such a circumstance, there is no investigation.