In Earls investigation, federal judge wrangles with key question: How political can NC Supreme Court justices get?
North Carolina Supreme Court Justice Anita Earls was in court Thursday — but on the other side of the bench.
Earls is suing the state's Judicial Standards Commission. She wants to stop an ethics investigation that's targeting her for critiques she made about racial, gender and political biases at the state's highest court. She says it's a violation of her First Amendment rights, and little more than an attempt to intimidate her into silence.
On the other side is the Judicial Standards Commission, which says judges are banned from making comments that might make people lose faith in the integrity of the judicial system.
In the middle is Federal District Court Judge William O'Steen, who must now decide whether to shut down the investigation. He didn't issue a ruling Thursday but is expected to decide soon.
During Thursday’s hearing, O’Steen acknowledged that both sides have valid points: Judges are indeed 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, particularly when it comes to political speech — since in North Carolina judges have no choice but to act as politicians, required 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. In a handful of interviews with legal publications this year, Earls commented on the fact that the staff of the Supreme Court is also almost entirely white. She said biases in the legal profession are so deeply entrenched that lawyers — and even her fellow justices — have openly treated her rudely during court hearings.
"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 an interview with legal news service Law 360 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 say they believe that violates rules for judges against harming trust in the state courts. They strongly oppose any efforts to stop their investigation.
"These issues are best left to the commission," Jonathan Ellis, a lawyer for the Judicial Standards Commission, told O'Steen Thursday.
Politics and the court
If the state's investigation is allowed to proceed and 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 Earls' colleagues on the Republican-controlled state Supreme Court — the very people she's accused of disparaging for allegedly treating her, and others like her, unfairly.
A key legal question is whether the state's investigation into Earls is chilling her free speech rights. O'Steen said the fact Earls knows this investigation gives her Republican colleagues the power to kick her out of office could be seen as passing that threshold.
"If I knew I could be impeached, my speech would absolutely be chilled," O'Steen said.
But he also said he can see the argument from the state, that Earls' comments erode confidence in the judiciary. O'Steen pointed to an article in which Earls was quoted saying that the court's Republican justices are more loyal to their political ideology than to the institution of the Supreme Court.
"Doesn't that erode public confidence in the court?" asked O'Steen, a Republican, appointed to the federal bench by George W. Bush.
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 essentially the exact same accusations against Earls and other Democratic justices, by accusing them of issuing rulings based more on politics than the law. There's no evidence of any investigations into those remarks, although ethics investigations are typically kept confidential.
Millen also raised another argument: 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. So considering that Earls has already announced her own reelection campaign for when her seat is up in 2026, Millen asked, why shouldn't she be allowed to make statements about the politics on the court?
"These are clearly matters of public concern," he said.
North Carolina has been home to some of the nation's most expensive and politically contentious Supreme Court elections in recent years. The state's status as a key presidential swing state, as well as one with a Republican legislature but Democratic governor, has given state courts outsize influence. They're often asked to step in and rule on key political issues related to redistricting, election rules, the balance of power in state government and more. National Republican and Democratic groups have spent tens of millions of dollars in recent elections for the Supreme Court, which flipped to Democratic control in 2017 and flipped back to Republican control this year.
That context was not lost on O'Steen.
"If you pick up campaign literature, it's all over the board: 'I'm a conservative, I'm a liberal,'" he said. "To challenge the partisanship of others on the Supreme Court is kind of the way things go."
Earls supporters cry foul
It's not publicly known who requested the ethics investigation into Earls. But some Democratic politicians have pointed the finger at Chief Justice Paul Newby, a Republican who previously said that he was so disturbed by Earls' election to the court in 2018 that he lost sleep at night. Earls had been a prominent civil rights attorney before joining the court.
Newby didn’t immediately respond to a request for comment. Previous requests for comment or interviews have gone unanswered.
Brittany Pinkham, the executive director of the Judicial Standards Commission, didn’t immediately respond to a request for comment. She has previously declined to comment on the investigation or Earl's lawsuit. Pinkham was appointed by a Republican judge who serves as the commission chair at Newby’s discretion.
"The North Carolina Judicial Standards Commission is a non-partisan investigative body comprised of members appointed by the chief justice, governor, General Assembly, and State Bar Council," she said in a statement in August. "The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations."
Earls and her supporters say she's being targeted in an intimidation tactic. Going after the state's most well-known and powerful Black judge, they say, is meant to scare other Black lawyers and judges from also raising concerns about systemic racism in the courts system.
Packing the courtroom Thursday were several dozen community activists, liberal politicians and other Earls supporters from groups like the NAACP, League of Women Voters and Guilford Antiracism Alliance.
Earls also faced a separate ethics investigation earlier this year following a WRAL News article about policy change underway at the state Supreme Court that critics characterized as a power grab. It was dismissed shortly after it began, according to documents in Earls' lawsuit against the commission.
Both investigations came under new leadership at the Judicial Standards Commission after Republicans flipped control of the court earlier this year. The commission’s previous executive director announced her sudden resignation in late 2021, shortly after publishing a memo that indirectly suggested Newby was engaged in political activities that may have violated judicial ethics rules.
