In January, we sat down with Earls, one of two Democrats and the only Black judge on N.C. Supreme Court. In this continuation of our conversation (don’t miss Part 1 here), she talks about the importance of treating all litigants equally, what cases are expected to come before the court this year, and her message to anyone working to get out the vote in this election cycle.
You have said previously that, “the notion of equal justice is what is at stake moving forward.” What do you mean by that?
I think it is very challenging in each case that comes before us to make sure that we are treating all of the litigants the same. I think about that every day. What does it mean to be a court that is striving to achieve equal justice under the law? That means, in a criminal case, that we give the arguments of the defendant equal weight to the arguments of the state. In a case involving an employer and an employee, we give, again, both sides equal weight in our deliberations. And if you look at the record of the current majority of our court, you find very stark distinctions in terms of their tendency to almost always rule for the state in criminal cases, to almost always rule for the corporation in cases that pit individuals against the corporation. And let me also mention environmental protection because our court hears a number of cases that impact the extent to which our state is going to protect our natural environment. And there again, we decided a case most recently involving the pollution of a river in eastern North Carolina. Again, very stark difference between the conservatives and other views on the court.
Earls sits down for our interview
So if you're concerned about a court system that treats all litigants equally, I think it's important to look at our court’s record and to ensure that the candidates that you're considering voting for – that they are committed to protecting everyone's rights equally. ... Another important aspect of our judicial system in this state is the extent to which people without means can't hire a lawyer to represent them. I work with the Equal Access to Justice Commission. I was surprised to find out that in landlord tenant cases – so the fundamental question of whether you're going to be evicted and whether you will have a place to live. In only 1 percent of the cases across the state are tenants represented. I think we have to ask the question: Are we providing equal justice under the law if we have a system that doesn't give ordinary folks the ability to hire a lawyer and represent them?
There is an erosion of processes in this country and a violation of norms. If someone, for example, loses in court these days, there's a trend toward undermining the validity of the institution as a response, instead of accepting the verdict. How do we reverse that trend? Because, of course, it's a substantial threat to democracy when people have lost faith in government and norms.
I absolutely agree. The court system is the system we have for deciding disputes among people. I think there are actually some interesting ways that mediation and restorative justice concepts and programs are finding ways to resolve disputes between people outside of actually a neutral fact-finder deciding the facts. But right now, our state court system is where disputes get resolved between people. And I think, part of that is on us. It is up to us, as judges, to conduct ourselves in a way that merits trust and respect. If we're not doing that, voters need to tell us. I think, at the end of the day, whether or not we have a court system that's worthy of respect, worthy of faith and trust, is in the hands of the voters. Will you put people in office whose integrity you believe in and who– through their past record – have demonstrated that they're going to conduct themselves, they're going to rule in cases fairly, they're going to be worthy of respect? I also think that there's nothing wrong with being critical of how the court has decided. But until we have a different system, it doesn't serve the public well to not have people in the office whose record demonstrates they will uphold the principles that we think are important.
What are some issues expected to come before the court in the coming months? Leandro is on the docket, for one.
Yes, we are scheduled to hear oral arguments again, in the case that will determine whether or not the funding will be provided to put in place measures that have been recommended by the trial court. So a trial court heard extensive evidence and said: “These are the things we need to do in order to give students across the state a sound, basic education.” And so the issue is whether or not that will be funded. We are also continuing to hear cases about Confederate monuments. Our docket is about half criminal cases, and we've heard a couple of capital cases – so cases where someone is facing the death penalty. I expect we will continue to hear cases about whether or not there has been fairness in jury selection or whether African Americans or women were excluded from a jury because they were an African American person or because they were a woman, which, under the Constitution, doesn't comport with our notions of fairness. I know it's on our docket to hear cases about the General Assembly statute that extended the time period that victims of sexual assault can bring lawsuits. There continue to be a lot of controversial cases. What I am not as aware about are cases that are filed in the trial courts – whether they will make it to our court is unclear. Something I think is really important for voters to know: Our Court of Appeals was established in 1967. … Court of Appeals cases are heard by a panel of three judges. And everyone has the right to go to the Court of Appeals to have a legal issue appealed. So if you have a car accident case, and you think the trial judge did not apply the law properly, you have a right to go to the Court of Appeals and ask a three-judge panel to rule on what the law should be. Not on the facts – whether the light was red or green, that's what the trial court gets to decide. But the legal questions of, say, was the law of contributory negligence applied properly in your case? You can go to the Court of Appeals. If the decision is 2-1 – one of the judges dissented – up until now, you had the right to come to our court. The most recent budget bill eliminated that right. So now, our docket is discretionary, meaning that it takes three justices to vote, and in some instances four, to decide whether to hear a case. It’s unclear now which cases we'll hear. I will say, the exception to that are the business court cases. So North Carolina has a business court for complex business litigation. If you're a corporation, engaged in a very complex dispute with another corporation, you get to come directly to our court. You don't have to go to the Court of Appeals. And you automatically have the right to be heard in our court. To me, that is a pretty fundamental change in our legal system. And it's just one of many changes that have been occurring since January 2023 that I think ultimately has some pretty severe consequences for our justice system.
You talk to North Carolinians all the time about your values and how you view the court’s important role in our democracy. Distill that down for us. What's your pitch?
Earls addresses the crowd at FLIP NC’s 2018 launch party
My whole career was about making sure that everyone's vote counts because I fundamentally believe that we're only going to have good policies, we're only going to have good government, we're only going to have good decisions if we hear everyone's voice. We can't exclude part of the population and make decisions that ultimately will impact everyone. … I fundamentally believe that we all should have the right to have a say in who's making decisions that impact our lives. And so yes, your city council makes those decisions, the school board does, the county commission – all of those parts of government make those decisions. But so do courts, and a lot of states don't have elected judges. I know there's a lot of people, who I respect tremendously, who don't think we should elect judges. But that is the system we have here in North Carolina. And I certainly believe I would not be able to serve on the bench if it hadn't been for my opportunity to go to voters and … ask for their votes. I think it's harder to hold judges accountable in the same way that you're going to hold legislators accountable because we can't predict – we can't promise to you how we're going to rule in any particular case. And I think that's appropriate; we shouldn't. But we certainly can talk to you about what our career has been, whose interests we've represented, what we stood up for, and what we think is fundamentally important. That’s why I think voters can really make a difference in deciding who they want on the bench. And a lot of organizations are working hard to make sure that our record is known. Once we're on the bench, you can look at the decisions we've written in the past and get a sense of what we think the law should be. And so, you really, at the end of the day, control what kind of justice system you have.
Let's talk about your sense of who's running for Court of Appeals in 2024.
There are three seats on the ballot for the Court of Appeals. Carolyn Thompson is on the Court of Appeals now. Judge Thompson was appointed by Governor Cooper and so she's running to keep her seat. Martin Moore is challenging a Republican on the court. Ed Eldred is also challenging a Republican. So those are the three seats that are up, and the Court of Appeals decides a lot more cases than we do. Our numbers are actually down [in the Supreme Court]. We we are on track to issue opinions in 80 cases this year, which is not that many. The Court of Appeals issues hundreds of decisions, and so it really matters who is on that court.
It's not the easiest time to be in government. It’s not the easiest time to be an elected official. What is giving you hope these days?
I think that it's challenging because our politics have become so divided. Certainly, part of what gives me hope is young folks and young voters getting engaged. But then I also think about the people whose footsteps I follow in. I acknowledge that, with all of our challenges today, there are ways in which doors have been opened for me that weren't for the people that came before me. One way that I'll talk about that: When I was sworn in to this court, my former law partner – James Ferguson, African American attorney in Charlotte, who I first practiced law with – he spoke at my ceremony and talked about how the first time that he came to the North Carolina Supreme Court to argue a case, when he stood up to make his argument, the Chief Justice of the court got up and walked out of the courtroom and then returned when he sat down. Sending the message that he didn't want to hear what a Black man had to say about his client’s case. That doesn't happen anymore. And that was before we'd ever had any African American on the North Carolina Supreme Court. So part of what gives me hope is the knowledge that we are continuing to make progress and that we just have to keep trying.
FLIP NC is committed to bringing attention to judicial races this year and going forward. We want to defend the progressive seat that's on the ballot for the Supreme Court in 2024, and we want to help elect progressives up and down the ballot, including other judges. What is your advice to anyone looking to get involved this year, to anyone who's going to go out and speak to voters?
We have to really broaden our understanding of civic engagement. It's not enough that you vote or that you get your friends and family to vote, but actually that people understand why it matters, and that they're motivated to get more engaged. So we have to do more to make our voices heard. The second thing that concerns me are the changes in our voting laws that are going to make it harder to vote. Not only the voter ID, which will impact some people, but also the problem [with] same-day registration. Now, if you go and vote and register [on the same day], it's actually a provisional ballot. To me, that means that we need to get so many more people registered at the front end. I used to talk a lot – when I was doing voting rights work – about how same-day registration is the fail safe. It corrects for mistakes that might happen. If you think you've registered and for some reason your registration didn't go through? Well, if you go to vote at early voting, you can use same-day registration, correct all those problems. In some of the litigation, there were really powerful examples of why we needed same-day registration to correct for mistakes and to enfranchise everyone. The point is: If you are a qualified voter, you should be able to go cast a ballot and have it count. We're going to face a lot of hurdles in 2024 that weren't present before. Understanding that and targeting our efforts appropriately, I think is really important. I would say to voters: It's more important than ever before that you get engaged and that your civic engagement has to be more than just casting your ballot.
Note: Both Democratic justices – Anita Earls and Allison Riggs – will speak at our Feb. 25 launch party at Motorco in downtown Durham. Get the details and register to attend.