North Carolina Supreme Court Justice Anita Earls has been spending extra time in court recently as she’s in the middle of a lawsuit against the NC Judicial Standards Commission (NCJSC) that is investigating her for comments she made about biases at the high court.
Earls filed a lawsuit on Aug. 29 after the NCJSC – which is in charge of judicial ethics and oversight in the state – opened an investigation targeting her after she gave an interview in which she highlighted “the lack of diversity among the staff of the state’s highest court, lamented a recent decision to end bias training for court employees and accused fellow justices of disrespecting her,” WRAL reported.
She also suggested that, as the only Black woman on the court, race and/or gender may have been factors in what she perceived as slights against her.
For their part, the NCJSC claims that judges are banned from making comments that might make people lose faith in the integrity of the judicial system.
The judge overseeing the lawsuit, Federal District Court Judge William O’Steen, a Republican appointed by George W. Bush, is being tasked with deciding whether to shut down the investigation or let it continue. The parties appeared in front of O’Steen on Nov. 2, but he did not make a ruling that day.
At the hearing, O’Steen said that both sides have valid points in their defense: Judges are bound by rules requiring them to carefully choose how they act and speak in public, and they sometimes have to censor themselves. But judges also don’t give up all of their constitutional rights, he said, especially when it comes to political speech — since in North Carolina judges have no choice but to act as politicians since they are required by law to run for election in partisan campaigns just like any other politician.
“There is a line that has to be walked by a judge or justice in North Carolina,” O’Steen said. “… But I’m not sure where it is. Which is why we’re having this hearing.”
Most of the North Carolina Supreme Court’s justices are white Republican men. Earls is the only Black justice on the court, one of two Democrats and one of three women. A study of advocates who argued at the state Supreme Court found that 90% of the lawyers were white and nearly 70% were male. In an interview with legal news service Law 360, Earls was asked for her response to the study and she said that there’s a lack of racial diversity among the court’s clerks and that her colleagues treat certain advocates at oral argument far differently than they do others. She added that she didn’t think the issues were because of conscious bias, but that “we all have implicit biases.”
“Sometimes it’s hard to separate out: Is this race or is this gender or is this because of my political views?” Earls said in the interview that was published in June. She then answered her own question: “Any one of those three or the combination of all three might be the explanation.”
The ethics investigators at the NCJSC said they believed those comments violated the rules for judges against harming trust in the state courts and they strongly oppose any efforts to stop their investigation.
The identity of the person who ordered the investigation into Earls is a secret, but according to former judge and now state Rep. Abe Jones (D-Raleigh), Supreme Court Chief Justice Paul Newby is behind it.
This is the same Paul Newby who has a personal history of criticizing judges and the same Paul Newby who runs the state Supreme Court in an extremely partisan way.
In 2019 when Newby was the only Republican on the state Supreme Court, he gave a speech calling the other justices “far-left political activists.” He also singled out Earls, telling an audience that her election to the court had worried him so much that he lost sleep over it.
Since becoming chief justice in 2021, Newby has:
- Removed a judge who ruled against the NCGOP in the Leandro school funding case
- Overseen the firing of multiple career court administrators
- “Pushed an interpretation of ethics rules that would allow judges to become permanent candidates who can raise money throughout their eight-year terms.”
- Replaced the head of the Administrative Office of the Courts who then fired five senior staffers and replaced them with Republicans with connections to Newby or other judges.
- Pushed out the head of the NCJSC in 2022 and then appointed five Republican jurists to serve on the commission, including the chair.
If O’Steen allows the state’s investigation to continue and it finds that Earls did violate judicial ethics rules, the punishments could range from a private reprimand to a public censure, and up to being kicked off the Supreme Court and banned from ever serving as a judge again.
O’Steen noted that while the Judicial Standards Commission will recommend what should come of its investigation, the final decision on any punishment will come from the Republican-controlled state Supreme Court — the very people she’s accused of disparaging for treating her, and others like her, unfairly.
The future of the investigation will likely come down to the question of whether the NCJSC’s investigation into Earls is chilling her free speech rights. O’Steen recognized the fact that Earls knows this investigation gives her Republican colleagues on the court the power to remove her from office and that knowledge could be seen as passing that threshold.
“If I knew I could be impeached, my speech would absolutely be chilled,” O’Steen said.
He added that he could also see the argument from the state, that Earls’ comments erode public confidence in the judiciary. The judge referenced an article in which Earls was quoted as saying that the Supreme Court’s Republican justices are more loyal to their political ideology than to the institution of the Supreme Court.
Press Millen, Earls’ attorney, said the Judicial Standards Commission is being inconsistent by singling out Earls. He said the court’s Republican justices have made the same accusations against Earls and other Democratic justices, by accusing them of issuing rulings based more on politics than the law.
Millen also highlighted the fact that justices are allowed to endorse political candidates in other races, and in their own campaigns they’re allowed to tell voters that another judge or candidate for judge would be a bad choice. Millen added that since Earls has already announced her reelection campaign for 2026, shouldn’t she be allowed to make statements about the politics on the court?
“These are clearly matters of public concern,” he said.
O’Steen has not made a ruling on the ethics investigation at the time of this writing, but one is expected shortly.