As the nation’s most pressing issues are increasingly decided in state courts, conservatives have stepped up their efforts to limit the role of state court judges as critical checks on legislative and executive overreach in state governments. As part of a concerning and growing strategy, some conservatives have sought to punish individual judges who don’t rule in their favor by weaponizing ethics standards meant to ensure independence and nonpartisanship in the judiciary. This strategy is intended to silence or even remove justices whose rulings frustrate conservatives’ ideological agenda, including when it might interrupt the power they’ve secured through anti-democratic gerrymandering.
Ongoing Attacks in North Carolina and Wisconsin
North Carolina Supreme Court Justice Anita Earls, the only Black woman on the court, recently gave an interview in which she discussed the lack of diversity on the state’s appellate bench and the role she believes implicit bias has played in perpetuating the problem. She also criticized Chief Justice Paul Newby’s decision to eliminate programs intended to identify and address implicit bias in the judiciary’s public-facing and internal operations.
Shortly after the interview was published, Justice Earls was informed by the North Carolina Judicial Standards Commission that she was under investigation for possible violation of the state’s Code of Judicial Conduct. The commission alleged that her comments undermined public confidence in the court’s integrity and noted that its investigation could result in sanctions or even in her removal from the bench. In response, Justice Earls has filed a lawsuit against the commission and each of its fourteen members in federal court, alleging that their investigation is an unconstitutional breach of her First Amendment rights and asking the court to prevent the commission from taking any action against her.
At the same time as conservatives in North Carolina are threatening to remove a progressive justice from the state’s highest court for acknowledging the existence of structural racism, Republican lawmakers in Wisconsin have set their sights on newly sworn-in Justice Janet Protasiewicz, who won a seat on that state’s highest court this spring in the most expensive state supreme court election in the nation’s history.
Justice Protasiewicz’s victory flipped the balance of power on that state’s highest court to progressives for the first time in 15 years, and conservative legislators are now discussing impeaching her over comments she made during her campaign implying that the state’s legislative district maps violate the constitution by discriminating against certain voters. Wisconsin has one of the most gerrymandered maps in the country, ensuring overwhelming Republican control even when Democratic candidates win a majority of votes.
The Republican legislators, eager to hold onto the power guaranteed by those gerrymandered maps, are now demanding that she recuse herself from hearing any cases related to the state’s maps. In response, Justice Protasiewicz publicized a determination from the state’s judicial standards commission that found her comments did not violate its judicial canons. Despite the ruling, Republicans have not backed away from their impeachment threats, and voters have filed a lawsuit to block the legislature from moving forward with any efforts to impeach her.
While Republicans in the Wisconsin House do not appear to currently have the votes necessary to impeach her, there is also the fear that if they do, the Republican-controlled Senate could simply refuse to litigate her impeachment, leaving her unable to rule on any case indefinitely.
Scapegoating Justices as Attacks on Democracy
This trend of targeting state supreme court justices is somewhat new, but conservatives across the country appear to motivated by seeing each other’s attempts.
In 2018, for example, conservative legislators demanded that Washington Supreme Court Justice Mary Yu recuse herself from two cases related to the state’s public education system after she gave remarks at an annual gathering of the state’s largest teachers union. She refused, and despite conservative assumptions, she ultimately joined majority opinions that favored conservatives’ preferred outcome in both cases.
In 2022, several Ohio House Republicans floated the idea of impeaching the Republican chief justice of the state supreme court, Maureen O’Connor, after she joined the court’s Democrats in striking down the Republican-controlled legislature’s redistricting maps for the third time. They never followed through, but their willingness to even entertain such retribution was disturbing.
Later that year, two ethics complaints were filed against Montana Supreme Court Justice Ingrid Gustafson alleging that she should have recused herself from a case argued by attorneys who had endorsed or contributed to her campaign, despite no such requirement in the state’s judicial ethics canon. And earlier this year, Wisconsin Supreme Court Justice Jill Karofsky revealed that a complaint was filed against her in January 2021 accusing her of having revealed a political and racial bias after she criticized efforts to ascribe fraud to the 2020 election during oral arguments in the case brought before the court by former president Donald Trump.
Each of these complaints was dismissed by the commissions investigating them without any findings of wrongdoing. But a lack of success in proving instances of judicial misconduct has not stopped conservatives from characterizing progressive judges as unfit to serve as a pretext for removing them from the bench.
State Lawmakers Threaten Supreme Court Justices They Can’t Control
Crucially, none of these justices have been found to be in violation of any judicial codes or canons by any regulatory bodies that have been asked to investigate their actions. This is because the U.S. Supreme Court held in a 2002 case, Republican Party of Minnesota v. White, that the First Amendment protects the rights of judges and judicial candidates to speak about legal and political issues, with most states’ judicial canons separately recognizing this right.
Instead, these attacks appear to reveal an ulterior motive: a desire by conservatives to neutralize justices who would threaten their hold on partisan or ideological power, as illustrated by the context in which these complaints have been filed. Justice Earls commented in her interview that the seven conservative members of the court have an allegiance to their ideology rather than the institution of the court. Ohio Republicans explicitly called Chief Justice Maureen O’Connor a traitor to her party after she joined Democrats to strike down their maps on constitutional grounds. The case that Montana Republican legislators demanded Justice Ingrid Gustafson recuse herself from involved questions of ballot access for a Republican-sponsored ballot proposal that would have seen justices elected in regional districts rather than statewide races, potentially introducing gerrymandering to supreme court elections in the state.
A pattern has also emerged of conservatives seemingly weaponizing judicial ethics boards against justices who highlight the structural racism baked into the judicial system. The Wisconsin attorney who filed the complaint against Justice Karofsky accused her of showing a racial bias in comments she made during oral arguments asserting that the Trump lawsuit was fundamentally racist because it sought to toss out over 170,000 absentee ballots in Wisconsin’s two most diverse counties. Similarly, Justice Earls was accused of undermining public confidence in the court’s impartiality by highlighting examples of implicit bias she personally observed in her colleagues’ conduct. Black lawmakers in the state believe that the ultimate goal of the commission’s investigation is to intimidate and silence other lawyers and judges who may seek to address racism in North Carolina courts.
These cases share several important commonalities aside from a demonstrated lack of wrongdoing on the part of any of the justices in question. All of the justices are women. Moreover, many of them have ruled against conservative litigants in high-profile cases. In all of these instances, conservatives saw these justices’ power to make important decisions as a threat to their own political control, and they responded by accusing the justices of ethics violations in an effort to intimidate them into silence or even remove them from their positions altogether.
At a time when our state courts are more critical than ever in preserving fundamental rights, these cases illustrate a concerning pattern of legislators and others abusing systems meant to ensure integrity in the judicial system to instead attack members of the judiciary that they are unable to control.
Erin Butler is a Regional State Courts Counsel at Alliance for Justice.