|
Getting your Trinity Audio player ready...
|
Anita Earls was in a conundrum on this warm October afternoon.
Sitting at a table outside Durham’s Guglhupf bakery and cafe, the North Carolina Supreme Court justice clearly wanted to talk. But ask her certain questions and she pauses, either to carefully consider her response or say she cannot answer at all.
Earls had filed a federal lawsuit against the Judicial Standards Commission two months earlier over its investigation into statements she’d made to the legal publication Law360. In the interview, she decried the lack of racial diversity within the state judiciary, detailed how Chief Justice Paul Newby derailed efforts to rectify racial disparities and implicit bias, and said that her conservative colleagues elevated politics over the law.
The commission said her statements may have violated ethics codes prohibiting judges from saying anything that could undermine public confidence in the court. She alleged the commission’s investigation stifled her free speech rights.
Civil rights advocates declared the commission’s investigation political and racist, as Earls is one of the court’s two Democrats and only Black woman. Dawn Blagrove, executive director of Emancipate NC, said at a news conference that the investigation is one example of the “unrelenting trauma and hostility that Black women lawyers have to face every single day in North Carolina just to do our jobs.”
The legal battle ended January 17 when the commission dismissed its complaint and Earls dropped her lawsuit. But the fight was just the latest example of a state Supreme Court seemingly caught up in political gamesmanship and unprecedented personal sniping.
Earls is at the center of it, as one of the state’s top civil rights attorneys and one of two Democrats left on a court they controlled just two years ago.
Mitch Kokai, senior analyst at the John Locke Foundation, said conservatives see Earls as legislating from the bench. “If Democrats can’t win something at the ballot box, they would turn to the courts to have the courts get the victory that they can’t win at the ballot box,” he said.
Many liberals would say the same thing about the court’s new conservative majority: that it’s taken political liberties since winning a 5-2 majority in 2022, that the tenor has grown more polarized.
In 50 decisions released last year, Republicans rarely dissented from the majority, and the Democrats hardly sided with the Republicans. The court also made the rare move of granting a request from Republican state legislators to rehear two cases on gerrymandering and voter ID on which Democratic-majority court had already ruled. The court reversed the rulings of both cases in Republicans’ favor.
The ideological divide has also crept into what is supposed to be a civil and collegial culture on the court.
The day after Earls filed her lawsuit, the court split on a decision to vacate a Court of Appeals decision involving a defamation suit against a TV news station. Earls dissented, accusing her conservative colleagues of “injecting yet more confusion, arbitrariness, and partisanship into North Carolina’s legal system.”
Justice Richard Dietz went after Earls in his written opinion: “One can reasonably disagree with our approach, but to claim that our decision comes ‘at the cost of the integrity of our justice system and our citizens’ faith in it’ is a bit unhinged.” He called her dissent “hyperbolic” and “exaggerated.”
That kind of rancor was unheard of when former Chief Justice Burley Mitchell served on the bench in the 1980s and ‘90s. The differences weren’t so political and they certainly weren’t personal, even if they argued about the substance.
“We never let any of that mess go into the opinions,” said Mitchell, “and we always walked out and had lunch.”
Earls’ interview with Law360 that led to the investigation certainly got to the tension with her colleagues: “Their allegiance is to their ideology, not to the institution,” she told the outlet. Her stinging dissents echo that feeling.
“We never let any of that mess go into the opinions, and we always walked out and had lunch.”
Former Chief Justice Burley Mitchell
But that’s not the impression Earls gave as she talked over coffee. She came across much more demure, nearly reticent. Friends and colleagues describe her as almost painfully shy.
“She’s not someone that seeks the spotlight, but she is driven by her passion for justice,” said State Rep. Marcia Morey, a Durham Democrat.
Still, she wants to talk—and to be heard.
Across Racial Lines
Earls grew up in Seattle as a biracial child who identified as Black. Both she and her younger brother, Aaron Brooks, who was also biracial, were adopted by an interracial couple. Her father, Garnett Brooks, a Black man who grew up in Missouri, had dreams of becoming a doctor and her mother, Hazel Brooks, a white woman, worked as a registered nurse.
Garnett couldn’t find a four-year college that would accept Black students, Earls said, and instead obtained a certification as a urology technician and became respected enough that he taught medical students at the University of Washington. But because he was Black, he never earned the same salary as white urology technicians.
“He was a brilliant man, incredibly smart and talented, but at every stage in his career, he faced these barriers because of his race,” Earls said.
She also saw racism affect her brother.
“I remember being in high school, reading some of his report cards, and his teachers are saying he’s behaving like a young Black man, which is what he is, but he was in a school system that found that unacceptable,” Earls said.
Her brother had dyslexia, she said, and if teachers had diagnosed it sooner, he would have done better in school.
When Earls was 6, her family integrated an all-white neighborhood in Seattle, she told writer Billy Corriher in his 2021 book about North Carolina courts. A white woman once turned a garden hose on Earls and her brother as they rode bikes down the street. Another time, her brother was chased out of a friend’s house; a gate struck his back, leaving him bleeding. Earls feared for her father’s life when he went to confront the white family.
It was the late 1960s and there was growing racial unrest in many parts of the country. She was 8 years old when civil rights leader Martin Luther King Jr. was shot to death.
“I don’t think there were ever riots in Seattle, but I always had this great fear that because my family looked the way we did, with my brother looking more Black than I did, that if we were ever in a neighborhood and a riot broke out, people wouldn’t know that we were a family. And it felt like the wrong people would be trying to hurt us.”
She was still in middle school when she decided to become a lawyer. “I wanted to be a voice for people who didn’t have a voice,” she said in Corriher’s book.
She also wanted to bring people together across racial lines, she said, believing her “very survival depended on it.”
A Different Insight To The System
Earls’ journey to becoming one of North Carolina’s top civil rights attorneys began at an historic law firm in Charlotte. It was the first integrated firm in the state, now known as Ferguson, Chambers & Sumter. Adam Stein, the father of Democratic gubernatorial candidate Josh Stein, was a partner when Earls joined.
Founder Julius Chambers, who died in 2013, started it as a solo practice in 1964 to provide legal services to the Black community and fight racial discrimination.
As the firm grew, its attorneys worked with the NAACP Legal Defense Fund to win some of the most historic cases in the country. Chambers was personally responsible for two major civil rights wins at the U.S. Supreme Court: the 1971 desegregation case Swann v. Charlotte-Mecklenburg Board of Education and the 1986 voting rights case Thornburg v. Gingles.
Earls was a “committed young lawyer who wanted to get involved in doing work that was meaningful,” said James Ferguson, a current partner at the firm.
She handled a myriad of cases, including civil rights suits, but she said the hardest ones dealt with police misconduct. It was one thing to go to a community meeting to talk about voting rights and access; it was another to sit across from a grieving family and tell them the officer who killed their loved one wouldn’t be criminally charged, but they could file a civil suit.
“They wanted justice for their family, and monetary damages rarely felt like justice,” Earls said.
Earls came to understand that on a deeper level when her own brother was killed when he was 44. Aaron Brooks had been a staff sergeant in the U.S. Army and was making a living putting up drywall in Belfair, Washington. On July 16, 2006, his on-and-off girlfriend stabbed him to death with a kitchen knife.
The woman was arrested, but the elected district attorney declined to prosecute. The woman initially told investigators that she and Brooks thought an intruder broke in; the woman grabbed the kitchen knife and when she went around the corner, she collided with Brooks and accidentally stabbed him.
When county sheriff’s investigators confronted her with two restraining orders she had sought against Brooks, she changed her story: Brooks had assaulted her and she’d grabbed a kitchen knife and warned him not to come closer. He ignored her warning, lunged at her, and fell onto her knife, she told authorities.
Earls, who was director of advocacy at UNC Chapel Hill’s Center for Civil Rights at the time, didn’t believe either story.
Brooks and the woman had dated for at least a year, Earls said. They had a volatile relationship, according to documents from the Mason County Sheriff’s Office that The Assembly obtained through a public-records request. Detectives noted bruises on the woman and a clump of hair at the scene that appeared to match the woman’s. She told authorities that Brooks had pulled her hair.
One of the woman’s ex-husbands told authorities that she’d pulled a knife on him several times. The woman told authorities that she initially lied because she didn’t want either her or Brooks to go to jail, according to the documents.
Earls wrote to the sheriff’s office and to prosecutors that she believed the woman was capable of lying and had no remorse over her brother’s death. Earls consulted a private forensic pathologist to review the state’s autopsy report, which noted that the knife penetrated her brother’s chest up to the knife’s hilt—evidence, to her, that the death was no accident. But District Attorney Gary Burleson, who died in 2013, declined to prosecute. Earls said he told her it would be too expensive, he said, and no jury in the predominantly white, rural county would convict a white woman for killing a Black man.
Earls spent months working to compile what she believed to be compelling evidence to persuade the DA to change his mind. He wouldn’t. She consulted a civil attorney, but decided against pursuing a wrongful death lawsuit. It didn’t feel like justice.
“They wanted justice for their family, and monetary damages rarely felt like justice.”
Supreme Court Justice Anita Earls
It wasn’t just how her brother died that bothered her. Her father lived just a few miles down the road, but didn’t find out his son was dead for two days—not until a neighbor showed him a newspaper article.
“The woman who killed my brother told the police who was his next of kin,” Earls said. “They hadn’t bothered to contact my family. When people say ‘Black Lives Matter,’ I say they should—but sometimes it doesn’t seem [like it].”
It took her months to accept that she couldn’t get justice for her brother, and acceptance took her to a dark place.
“I went through a period of time where I felt there was absolutely nothing valuable I could possibly do,” she said. “Then I sort of decided I wasn’t going to give up.”
A Changed Landscape
The failed attempt to get justice in her brother’s death is part of what fueled Earls to found the Southern Coalition for Social Justice in 2007.
That’s where she first met Allison Riggs, who was recently appointed to the state Supreme Court after Democrat Mike Morgan stepped down to run for governor. Riggs was so eager to work at the Southern Coalition that she accepted a fellowship without pay and slept on her sister’s couch until Earls could find the funding for a salaried position.
“We had this teeny tiny office in downtown Durham,” Riggs said. “I think there were at the time two other attorneys working there and there were a bunch of interns.” Earls shared an office with a paralegal, Riggs recalled.
Over the next few years, the nonprofit grew into a force in state politics. In North Carolina v. Covington, Earls and other Southern Coalition attorneys alleged that 28 state legislative districts had been illegally gerrymandered on the basis of race—a case that made it all the way to the U.S. Supreme Court and eventually forced the General Assembly to redraw the maps.
In 2016, Earls and other civil rights attorneys successfully challenged House Bill 259, a wide-ranging elections law that curtailed early voting, eliminated same-day voting registration, and imposed voter ID. Republican legislators had pushed the law through soon after the U.S. Supreme Court gutted the Voting Rights Act of 1965.
In November 2017, Earls announced she was running for a seat on the N.C. Supreme Court. Earls had come to believe state courts would be critical in protecting voting rights, she said.
“It is clear to me that I have to not just talk the talk, but also must have the courage to walk the walk,” she said at her announcement.
But the playing field for judicial elections had radically changed. Just a year earlier, North Carolina became the first state in nearly a century to make nonpartisan Supreme Court races partisan. This came after Morgan, a Democrat, defeated Republican incumbent Bob Edmunds. Republican legislators also repealed a law giving the governor’s party the first ballot line, after Roy Cooper’s 2016 win.
Four years earlier, the General Assembly had eliminated public financing for all judicial elections. Coupled with the 2010 U.S. Supreme Court’s ruling in Citizens United, judicial races became highly expensive.
While there were occasionally high-cost state Supreme Court elections or legislative efforts to rein in courts prior to 2010, “largely those fights had to do with tort reform and corporate interests being pitted against the plaintiff,” said Douglas Keith, senior counsel with the Brennan Center for Justice.
Across the country, state courts have now become political battlegrounds, he said. Legislators know courts can block their political agendas; to prevent that, legislators have found ways to gain control of the courts, he said. And more money has poured into what used to be mundane judicial elections.
Newby has been on the court since 2004 and defeated Democrat Sam J. Ervin IV in 2012. Both candidates accepted public financing but outside groups spent $2.8 million, according to an analysis from the online publication Facing South. About 90 percent of that went to Newby.
Earls raised $1.5 million for her 2018 campaign.
As that election drew closer, Republican lawmakers also made changes that critics say were designed to defeat Earls. One change placed Earls’ name last on the ballot for the court races. Democrats cried foul.
Republicans also canceled judicial primaries, which critics saw as a way of shielding incumbent Justice Barbara Jackson, a Republican, from competition. They hoped for a crowded Democratic field in the general election to help ensure Jackson’s win.
The plan failed. Chris Anglin, a Raleigh attorney who switched from Democrat to Republican in 2018, ran against Jackson. Republicans tried to change the rules to keep Anglin from running as a Republican. Anglin successfully sued to stay on the ballot.
A Changing Court
With the Republican vote split, Earls soundly defeated both Jackson and Anglin and was sworn in on January 3, 2019, joining a 5-2 Democratic majority. The political wrangling was just about to hit a boiling point.
Chief Justice Mark Martin, a Republican, announced later that month that he was stepping down to become dean of Regent University’s Law School, making Newby the sole Republican on the court.
Cooper chose Democrat Cheri Beasley as chief justice after Martin resigned. The appointment made history—Beasley was the first Black woman to lead the court. But Republicans felt Cooper had ignored the tradition of selecting the most-senior justice, which was Newby. The chief justice is elected statewide; the governor appoints the post only when a chief justice dies or steps down.
Beasley’s appointment gave Democrats a 6-1 advantage on the court. Newby openly bristled and decided to run against Beasley for the top position.
At a July 2019 Wake County event, Newby described the judiciary as the “most dangerous branch of government.” Then he went after his Democratic colleagues, comparing them to New York Rep. Alexandria Ocasio-Cortez, a self-described democratic socialist.
“Imagine seven AOCs on the state Supreme Court. Well, folks, we got six. It’s six to one,” he said. “I lose sleep at night thinking what would it be like if we had no one to hold accountable those that want to cause social change through our judicial branch.”
He also went after Earls specifically: “In 2018, the left put $1.5 million to get their ‘AOC’ person on the court.”
Former Justice Patricia Timmons-Goodwin, the first Black woman to serve on the court, publicly criticized Newby’s comments as over the line. But there’s no indication that the Judicial Standards Commission ever investigated Newby over his public remarks.
“I lose sleep at night thinking what would it be like if we had no one to hold accountable those that want to cause social change through our judicial branch.”
Chief Justice Paul Newby
In 2020, Newby narrowly defeated her in what became the most expensive judicial election in North Carolina history. Candidates and groups spent $10 million on state Supreme Court races that year.
Newby has been flexing his political power ever since, power that the General Assembly has only expanded in the last year by allowing the chief judge to appoint special superior court judges. The General Assembly also gave itself and Newby power to appoint additional members of the Judicial Standards Commission—the panel that investigated Earls—which critics say has made it a more political body.
In 2022, Newby declined to reappoint Julian Mann as director of the state Office of Administrative Hearings, which reviews contested cases from people, businesses and organizations upset with decisions state agencies made. Instead, he appointed Donald van der Vaart, a Republican who had served under former Gov. Pat McCrory and on a Science Advisory Board in the Trump administration.
In the most recent example of unprecedented moves, Newby demoted Donna Stroud as chief judge of the N.C. Court of Appeals. Newby instead appointed Chris Dillon, one of Stroud’s colleagues on the Court of Appeals who also had served as chair of the Judicial Standards Commission.
Newby declined to respond to written questions from The Assembly.
Stroud told The Assembly earlier this month she believed the move was political. Berger endorsed her Republican challenger, Beth Freshwater Smith, in 2022. Newby posed for a picture with Smith that was featured prominently on her Facebook campaign page and he presided over her swearing-in ceremony.
Newby also has made some quieter moves. Earls alleged in her interview with Law360 that Newby disbanded the Commission on Fairness and Equity, which Beasley had established in 2020 after George Floyd’s death.
Newby dissented, calling the commission “political” and arguing that Beasley’s order made factual findings solely based “on the subjective personal opinions of a majority of this Court, regarding matters which have or will come before this Court.” The court’s finding that systemic racism exists in the judicial system is “unsupported,” Newby wrote.
Morgan, who was appointed co-chair of the 30-member commission, told The Assembly that it stopped meeting after summer 2022 because it didn’t have enough members. Some had retired or their terms ended, but Newby declined to appoint new members. That commission was officially suspended last September.
Graham Wilson, the spokesman for the N.C. Judicial Branch, declined to answer questions about the commission and referred The Assembly to its website, which does not appear to have been updated since last year. It still lists Morgan as co-chair and under a section for meetings and minutes, it says, “None scheduled at this time.”
What Goes Unsaid
Earls also told Law360 that she started an internal committee on the lack of racial and gender diversity among court staff around 2021, which she said Newby also disbanded, along with implicit bias training that had been offered to judges. And she accused some of her junior male colleagues on the court of interrupting her during oral arguments.
That interview was at the center of the Judicial Standards Commission complaint, one of two against Earls last year. The first one was dismissed as well. Many of Earls’ supporters see the investigations as political.
Some point to the sudden resignation of Carolyn Dubay as executive director of the commission in March 2022 as further evidence of political interference, after she sent a memo reminding judges they shouldn’t make endorsements when they’re not up for re-election. The memo came shortly after Justice Phil Berger Jr. endorsed fellow Republican Trey Allen’s run for the court.
Wanda Bryant, a retired Court of Appeals judge who chaired the commission from 2014 to 2020, said in a declaration filed with Earls’ lawsuit that complaints involving judges commenting on “legal issues or other matters of public concern” were routinely dismissed because they didn’t fall into any category warranting discipline.
Changes that Republican state legislators have made to the commission in the most recent budget have also raised concerns about fairness and partisanship.
Newby now appoints six of the 14 members. The General Assembly appoints six and the governor appoints the remaining two members.
Bob Orr, a former state Supreme Court justice who switched from Republican to unaffiliated, has been an unrelenting critic of the commission. It was created to investigate complaints of traditional judicial misconduct, he said, but “became a vehicle for both political parties to try and use for political advantage,” he said.
Earls said that the very existence of an investigation has led her to self-censor. She noted her decision to eliminate a section of an upcoming Yale Law Review article that discussed the racial and gender composition in state courts and to decline to answer a question at a Greensboro Bar Association event as examples.
Even with her legal victory, Earls is still guarding her words. She said she will attempt to submit every public statement or writing to the Judicial Standards Commission for approval, fearing sparking another investigation for stepping over some line she didn’t see.
As the court gears up to decide another set of cases, political tensions aren’t going away. Senate Leader Phil Berger Sr., the father of Justice Berger, and House Speaker Tim Moore asked Earls to recuse herself from an upcoming hearing in the longstanding legal fight over school funding, noting that she participated in the case as an attorney for a set of plaintiffs. Earls declined. The plaintiffs, meanwhile, argue that Justice Berger should also recuse himself, as his father is involved in key questions about how to fund public schools.
With the lawsuit over, Earls is looking to the next two years and beyond. Her term ends in 2026, and she said she plans to run again. But Riggs, the only other Democrat on the court, faces a primary challenge as she seeks a full term. Whoever wins will likely face Jefferson Griffin, a Republican currently on the Court of Appeals, this fall.
Even in the best-case scenario for Democrats, the Republicans will hold a 5-2 majority until 2028.
Still, Earls says living in the minority is worth it if she can improve the system in any way.
“I know what it feels like when the justice system doesn’t work,” she said. “I want to try to prevent that for as many people as possible.”
Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.