State Republicans Try to Remove Top Jurist for Mentioning the Existence of Racial Bias

On Tuesday, it was reported that North Carolina Supreme Court Justice Anita Earls could be ousted from her seat for judicial ethics violations. Did she fail to disclose gifts from a billionaire benefactor on whose cases she was ruling? No. Maybe she’d gone on luxury vacations across the globe paid for by some of the richest men in the country and neglected to mention them on disclosure forms? Nope. Perhaps one of these billionaires bought her mom a house? Not that either. Her true crime: Earls, the only Black woman on North Carolina’s high court, spoke out about racial bias in her courtroom. Her alleged misconduct was speaking to the media about how few clerks of color the court employed and how her colleagues treated certain attorneys, including a Black woman, who argued before them. For that, a Republican-stacked judicial “ethics” commission has gone after her. Its targeting of Earls could fulfill the wishes of the gerrymandered Republican Legislature by removing a tireless advocate of racial equality.

Earls, who was elected with 1.8 million votes in 2018 and is a frequent dissenter to the right-wing majority’s decisions, was responding to a study of advocates who argued at the high court. This study found that 90 percent of the lawyers were white and nearly 70 percent were male. Asked for her response, Earls noted the lack of racial diversity among the court’s clerks and her colleagues’ disparate treatment of certain advocates at oral argument. She went out of her way to say she didn’t think that this was the result of conscious bias, but “we all have implicit biases.” Earls also criticized decisions by Chief Justice Paul Newby, a Republican, to end implicit bias training and disband commissions looking into racial justice issues.

The Judicial Standards Commission, which has been reshaped by GOP judges in recent years, is now alleging that Earls’ concerns about bias in the courtroom may violate judicial ethics rules. The commission investigates complaints against judges, and its investigation could result in discipline for Earls or even her removal from office. If the commission finds a violation, the state Supreme Court would ultimately decide whether to accept its recommended sanction.

The ethics rule in question says that judges should conduct themselves “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In a letter to Earls, the commission argued that she can’t suggest that another judge is biased unless she “knows this to be the case.” The commission says that without “some quantum of definitive proof,” it’s a violation of the ethics rules. In other words, unless Earls has proof that the commission considers “definitive,” she can’t speak out about bias at the highest level of North Carolina’s justice system. Never mind that Earls was not singling out one judge or justice, but rather discussing systemic racism as demonstrated through a comprehensive study of diversity at the North Carolina Supreme Court.

On Tuesday, Earls responded by suing the commission in federal court, arguing that the investigation is chilling her First Amendment right to free speech. She described her comments as “core political speech concerning important public policy questions regarding the justice system and administration of the courts.”

The truth is that Earls was speaking out in defense of the principles that the ethics rules seek to protect. The conduct that Earls described in her interview, bias in the court’s arguments and in its hiring process, could have violated the mandate that judges do their jobs “impartially” and treat people respectfully. A lack of diversity could certainly give people good reason to doubt the fairness of the judiciary.

The trumped-up charge against Earls is politically motivated. If this complaint had been filed a few years ago, it would’ve been summarily dismissed. But the commission has become yet another weapon for the North Carolina GOP to wield against judges who won’t do the bidding of the party or its corporate campaign contributors.

After Newby defeated former Chief Justice Cheri Beasley by 401 votes in 2020, his administration fired the head of the Judicial Standards Commission, who had stood in the way of the GOP’s goal of bending the ethics rules to allow judges to be considered permanent candidates, able to raise campaign cash and endorse other candidates throughout their tenures.

Republican leaders in the state’s heavily gerrymandered Legislature have also tried to reshape the commission over the years. Senate President Phil Berger, whose son is a Republican justice serving alongside Earls, introduced a budget bill this year that radically overhauls the commission to give GOP legislators control. Under current law, the state bar chooses four commissioners, the chief justice picks six, and legislative leaders choose two each. So Republicans already have a majority. But Berger’s proposed budget would politicize the commission even further, giving lawmakers the state bar’s four appointments, and it would ban lawyers—who have expertise that’s very relevant to the commission—from serving.

Rumors have long swirled in Raleigh that Earls could become the victim of a politicized judicial ethics complaint. She has been in the GOP’s crosshairs since she announced her campaign in 2018. Lawmakers passed several bills intended to hinder her campaign, and Republicans threatened to impeach her after she took office. (Like recent impeachment threats in Wisconsin, this happened just before Earls ruled on whether to ban partisan gerrymandering.)

Earls isn’t the only judge to face blowback for acknowledging racism or sexism. In Wisconsin, Justice Jill Karofsky also faced bogus ethics charges for calling out one of Trump’s post–2020 election arguments as racist. Karofsky warned that she was the victim of a political witch hunt: “The Wisconsin Judicial Commission, and others like it around the country, simply cannot allow partisan actors to proceed in bad faith and hijack the disciplinary system.”

Judges must be able to speak out about the bias that plagues our justice system. Jurists at every level have an obligation to confront bias that they witness. It’s in the judiciary’s best interest to root out biases that cause people to doubt the fairness of the system.

Republicans disagree. Newby’s “race-blind” agenda forbids any acknowledgment of bias in the system. Though he’s been a prosecutor and judge for four decades in North Carolina, Newby claims that he’s never witnessed any racism.

Since Newby and his Republican colleagues won control of the court in last year’s election, they’ve backtracked on racial justice. The court is once again willfully ignoring racism in jury selection, as all-white juries sentence Black defendants. And it reversed course on whether a 2018 voter ID law violated the state constitution’s ban on discrimination.

Now Republicans want to silence a duly elected justice for speaking out about bias that she’s witnessed. By filing suit in federal court, Earls has stood up for her own free speech rights and the rights of citizens across the state to expect and receive equal justice under the law. She’s also shown she’s not going to let the radical politicization of the state’s courts go any further without a fight.