Courts

Black Judge Said Diversity Is Good, So Her Colleagues Launched Disciplinary Probe

There's something rotten in the state of North Carolina.

By  
on

Screenshot 2023-11-03 at 12.42.02 PMJustice Anita Earls is the only Black justice on the North Carolina Supreme Court. In June, she gave an interview to Law360 where she discussed the importance of diversity in the justice system, citing the lack of racially diverse clerks, and the implicit bias that can manifest in treating advocates differently based on race or gender. She also noted that the majority refers to itself as “the conservatives” — which is objectively true — and they are more loyal to the conservative legal movement than improving the court system, flagging their pulling the plug on existing key North Carolina court system equity initiatives — which is protected political speech about court administration policies.

Based on these benign observations, her Republican colleagues launched an official probe against her on the grounds that her observations undermined the judicial system.

And while she did limit her criticism to court administration, if she had said that the conservative majority cared more about its ideology than the law itself, she would’ve had the backing of none other than the notoriously not liberal United States Supreme Court, which gave the NC Court majority a proper drubbing for blatantly mishandling the law for political gain just last Term.

This specific probe is just the latest cynical bid by the GOP majority to sideline a colleague that they openly dislike.

And that hostility to Earls is palpable. In a recent case, where the parties settled before the state supreme court could rule, the whole court agreed to dismiss the case, but the majority reached out and vacated the lower court decision sua sponte. Earls penned a dissent noting that this is generally not how “law” works and rather than merely disagree, one of her colleagues felt the need — not just to respond — but to declare, “Once again, this Court enters a routine order that draws an exaggerated, hyperbolic dissent from one of my colleagues.”

It could scarcely have been more inappropriate if he’d gone ahead and written, “sit down and shut up, missy.”

In any event, Justice Earls filed with the federal courts to vindicate her First Amendment rights to halt the baseless probe as a not-even-a-little-subtle effort to chill her free speech rights. That case is not going well.

Sponsored

If Justice Earls believed her statements were proper, why is she worried she’s going to be disciplined, Judge Osteen asked.

“Aren’t they supposed to believe the law will prevail?” he said.

It will shock you not even a little to learn that the if you aren’t guilty then you got nothing to worry about take belongs to George W. Bush judge William Osteen Jr. Osteen is, in the parlance of our times, a nepo baby, having arrived on the federal bench by virtue of his father having held the seat beforehand. His father had been appointed by George H.W. Bush, so it’s like nepo baby upon nepo baby.

Judge Osteen could’ve cabined his take to deferring to the state court system. It would amount to a cop out, but it would be defensible. Instead, he lent his snark to the effort to silence Justice Earls. Given that the probe frames itself as a matter of undermining faith in the judicial system, “Aren’t they supposed to believe the law will prevail?” can’t be interpreted as anything but mockery.

It wasn’t the last time Judge Osteen’s remarks betrayed a lack of seriousness.

Judge Osteen’s colorable argument for not staying the proceeding on First Amendment grounds is that there would be no harm unless the probe results in discipline. “If there is no adverse action here, there’s no First Amendment violation,” he said — disregarding that the probe is part of a relentless series of spaghetti against the wall efforts to stymie Justice Earls and that by merely targeting protected speech for possible discipline is well-established as an unconstitutional chilling tactic.

Sponsored

Anyone close to the judge want to get him an early holiday gift (affiliate link)? It’s never too early to start shopping!

Then, somehow, Osteen got himself even more crosswise:

The discipline could take the form of a private censure, Judge Osteen asserted, adding any heightened awareness of the commission’s investigations and harm that could come from such public light could be traced to Justice Earls’ filing a lawsuit.

“That’s her doing, not the commission’s,” Judge Osteen said.

Swing and a miss, bud. Government efforts to squelch free speech don’t disappear just because the intimidation never goes public. I get that the baseline impulse to blame the victim is strong, but sometimes it has to give way to “the caselaw.” And that’s before recognizing that the letter sent to the justice explicitly threatened her with removal from the bench elevating the reasonable stakes of the investigation beyond well, I dunno, maybe they’ll just give her a private censure. There are 179 degree angles less obtuse.

It seems Justice Earls won’t be getting any relief from the federal courts any time soon. For someone who didn’t actually say the courts in North Carolina are routinely putting bias over the law, Justice Earls is unintentionally doing a great job of proving it’s true.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, ,