The hypocrisy behind the investigation of NC Supreme Court justice Anita Earls | Opinion

Associate Justice Anita Earls joined the North Carolina Supreme Court in 2019 as a civil rights advocate for a fair and unbiased judicial system and she has remained one.

Now, according to the state Judicial Standards Commission, Earls’ willingness to address the state Supreme Court’s indifference to diversity and the role of race in judicial decisions is a potential violation of the Judicial Code of Conduct. Specifically, it’s alleged that she failed to act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Earls, one of two Black Democrats on the court dominated by five white Republican justices, initially complied with an investigation triggered by an anonymous complaint that was eventually dismissed. But when the complaint was strangely reopened, Earls had had enough.

On Tuesday, she filed suit in federal court seeking to have the commission’s probing of her comments and possible punitive action against her declared a violation of her free speech rights under the First Amendment.

Legally, Earls appears to be on solid ground. In its latest investigation, the commission is citing a vague standard to restrict her speech. Her comments in an interview with the online publication Law 360 did not involve specific cases before the court.

Indeed, in addressing a pressing public concern, Earls was serving the very standard she is said to be violating. When an associate justice is candid about where the judicial system needs to improve, it promotes “public confidence in the integrity and impartiality of the judiciary.”

The lawsuit filed on Earl’s behalf by Raleigh attorney Pressly Millen makes clear how of the commission’s investigation subverts the standards it’s supposed to enforce. It says, “The Commission’s actions in instituting the investigation indicate that it believes that ‘promoting public confidence in the impartiality of the judiciary,’ is best accomplished by threatening judges who speak out about what they view as imperfections or defects in the judicial system and who do so in a measured and nuanced manner.”

The commission – a 14-member group of judges, lawyers and lay persons appointed by the chief justice, the N.C. State Bar Council the governor and the legislature – is not necessarily at fault. That the law governing the commission allows for anonymous complaints and that the standard involved is so subjective make political gamesmanship in the guise of judicial oversight almost inevitable.

The public should know who is complaining about a judge and the outcome of the complaint. In this case, the source of the complaint could very well be a Republican in a black robe.

If anyone is at fault for weakening public faith in the “integrity and impartiality of the judiciary,” it’s the Republican justices who took control of the court following the 2022 election. They put a partisan stamp on the court by reversing decisions on gerrymandering and voter photo ID that were only months old.

Nothing had changed about the facts of the cases. All that had changed is that the court shifted from a 4-3 Democratic majority to the current 5-2 Republican majority. The rapid reversals were virtually unprecedented and drew national attention to the increasing partisanship of supreme courts in states that choose their justices through partisan elections.

The North Carolina Supreme Court’s image is also undermined by having Associate Justice Phil Berger Jr., the son of the state Senate leader, sit in judgment on cases in which his father is a lead defendant.

The cause of the court’s loss of public confidence goes deeper than five Republican justices. Republican state lawmakers restored partisan labels to judicial elections and ended public funding for statewide judicial campaigns, a change that forces appellate court judges and state Supreme Court justices to appeal to partisans for campaign funding.

Earls offers a needed dissent to the judiciary’s politicization and its tilt against the interests of minorities and low-income people. She won’t be silenced. Now it’s up to North Carolinians who value impartial justice to listen.

This story was originally published August 30, 2023 at 1:33 PM with the headline "The hypocrisy behind the investigation of NC Supreme Court justice Anita Earls | Opinion."