In this week’s three-part episode, we take a look at state supreme courts and why this year’s elections are so important. First, Kate and Emily Passini of the ACLU walk us through some of the most crucial races. Then, Kate and Leah speak with state supreme court candidates Professor Kimberly Thomas of Michigan and Justice Allison Riggs of North Carolina. Finally, we have a conversation with Professor Miriam Seifter and Justice Anita Earls of the North Carolina Supreme Court about the weaponization of judicial disciplinary proceedings. 

TRANSCRIPT

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Show Intro Mister Chief Justice, may it please come the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Kate Shaw Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And today, we’re bringing you a very special episode that is all about state courts. I’m your lone host for this segment, Kate Shaw. And our episode today is going to proceed in three parts. The first part involves a deep dive on state supreme courts that have one or more seats on the ballot in the upcoming election. In the second of this episode’s three parts, we’re going to be joined by two people who are actually running for judicial seats in their respective states, which are two really important ones, Michigan and North Carolina. And then in our final segment, we’re going to be joined by Professor Miriam Cipher of the University of Wisconsin, Madison, along with Justice Anita Earls of the North Carolina Supreme Court. So let’s dive right into our first segment. And welcome to the pod. Emily Pacini, who is the deputy director for candidate races in the National political Advocacy department of the ACLU. That means she is closely monitoring judicial elections, and she manages the strategy and investment of 584 and PAC dollars in select candidate races across the country. Emily, welcome to strict scrutiny.

Emily Pacini Thank you. Thank you for having me.

Kate Shaw We are so grateful that you are here because you’ve been following this landscape really closely, and it can be kind of overwhelming. So you will help us break it all down. And let me start by laying some groundwork for our listeners. In about half of the states, voters go to the polls to elect their state supreme court justices. Sometimes these are Partizan elections where there is, you know, a D or an R next to the candidate’s name. Sometimes they are nonpartisan, but either way, historically, these are typically relatively low profile and under the radar races. Now that is starting to change. And there have been recent elections for both the Wisconsin and the Pennsylvania Supreme Courts that attracted significant national attention and spending. And the progressive candidates won in both of those races. The races in those states really focused on the importance of state courts to issues ranging from reproductive rights and justice to elections and democracy and all that seemed to really resonate with voters. So fast forward to this election. According to bolts magazine, there are 82 seats on 33 state high courts that are at stake in this fall’s election. So, Emily, can you talk a little bit about some of the most important states and state races that you’re focused on? Maybe let’s start with, you know, 2 or 3, and then we can move on to talk about some others.

Emily Pacini Absolutely. As you know, 2024 is an incredibly crowded electoral year. We not only have the presidential, we have, top, targeted U.S. Senate races in a number of states that are going to determine the balance of power in that chamber. Additionally, we have very, tough fight for control of the US House. Nested within many of those presidential battlegrounds. And Senate battlegrounds are competitive state Supreme Court races in some of those states. They’re nonpartisan races and others they are Partizan races. We even have one retention election on the ballot. Some of the most, closely watched, court races this year are happening in Montana and Michigan, which are both states where we currently have pro civil liberties, majority courts. And in both of those states, we have opportunities to hold on to those majorities in their crucial holds. In both states. Those candidates are running as, in nonpartisan elections. And in both states there are two seats, on the ballot.

Kate Shaw So it’s interesting the kind of terminology that you use. Right. These are not Partizan seats. You’re not talking about Partizan control. You might think of them as progressive versus conservative control. But the rubric that the ACLU uses is pro civil rights or civil liberties. Some people again might just use the term progressive, but to use your terminology. So right now those are both what you would think of as hold courts. Right. So there’s the possibility of backsliding if one or both of those seats flip. But there’s also the possibility of holding what you describe as these pro civil rights or civil liberties majorities in both of those states. So that’s essentially a status quo preserving election in both of those courts, but really, really important ones. Okay. So what other court where you’re going to talk about.

Emily Pacini In Ohio, in Ohio represents one of the only opportunities we have this cycle to actually shift the balance of power in a state court. And justices for those seats run in Partizan elections. So there will be a D or an R beside those candidates names. There are actually three incumbent justices up for reelection this cycle. Two Democrats, Donnelly and Stewart and one Republican, Joe Dieter’s. The one it’s there’s an interesting thing happening in Ohio where the incumbent Republican Justice Joe Deters, who was appointed to his seat in early 2023 by the current governor, has actually chosen not to run in the seat he was appointed to. And he is actually challenging Melanie Stewart for her seat when he says the reason why he’s doing that is if he were running in the seat he was appointed to, he would be filling the remainder of that term and he would have to run again rather soon. So he is instead choosing to run for a full term. The court and that is that is the reason he is saying he is running against the sitting justice. Melodie Stewart got it.

Kate Shaw Okay, so but we do have right now two incumbent Democratic state Supreme Court Justices Donnelly and Stewart, trying to hold on to their seats. We have incumbent leaders trying to hold on to a different seat. But on this on the court, he’s already sitting on. And then there’s Lisa Forbes, who is a judge, I think, on a lower court in Ohio. And she is also running. So she would be a new justice on the Ohio Supreme Court. Is that do I have that right?

Emily Pacini You do. So technically Forbes is running in an open seat against Hawkins. So yes. So with, in order to flip the balance of power on that court, leaders would need to lose. So Stewart would need to beat, leaders, and then the Forbes would win the open seat.

Kate Shaw Right. So we have two incumbents facing off, and then Forbes running against Hawkins for an open seat. But so, you know, the background is a little more complicated than one would like. But the point is there are three Democrats running. And to the extent that you can tell, what are the odds look like of actually flipping the Ohio Supreme Court, and then maybe we could talk about some of the decisions that that court has handed down recently, because they’ve been really important ones.

Emily Pacini So the seats in Ohio are actually incredibly competitive. The polling is is very strong and showing a very tight race for all three races. You know, last year, as you as you’re probably aware, Ohio voters chose to, they voted in favor of an abortion ballot measure which enshrined, abortion rights into their state constitution. And we believe that that that has really kind of laid the groundwork for, for coming in to, to these to these competitive state Supreme Court races because, you know, in 2022, with the Dobbs decision, all of a sudden, people are have become very aware of how important these state courts are and the role that they play in deciding so many important issues like abortion access, like voting rights. And so in a state like Ohio, where you just had that ballot measure pass, you need to make sure you’ve got a court that’s actually going to implement it. Yeah. And additionally, in Ohio this year, there is a there is a ballot measure up in November that would look at the way that that state draws its legislative maps. And so that that also becomes, you know, an issue of representation protecting voting rights. And so number of very, very important issues that could potentially come in front of the Ohio state Supreme Court.

Kate Shaw Right. So that’s interesting. So there’s both the fact that that is on the ballot this fall that, you know, more democracy related measure involving redistricting and the fact that Ohio both just enacted reproductive freedom as a state constitutional right. But also several months earlier, beat back a legislative effort to ratchet up the threshold for amending the Ohio Constitution. So it does feel as though on the ground, Ohioans have been galvanized in a pro democracy and pro civil rights direction. And the question, I guess, is if these are all really close races, sort of how that cashes out and what turnout looks like in terms of the composition of the court after this election. And I mean, one more thing to throw in, and you said this at the outset, obviously at the top of the ticket is super important in, you know, every state, but in particular in states where there are important and potentially close Senate races. And of course, Ohio Senator Sherrod Brown is running for reelection. And I don’t know quite how close that looks right now. To my mind, that should be easy. He’s a great senator and Ohio should send it back to the Senate, no question. But, you know, I think that every state like Ohio, which is a red state, sending a Democrat to the Senate, that you can never count that as a foregone conclusion. And so I presume that that too will be a really important race. So there is a lot on the ballot in Ohio. And with the Ohio State Supreme Court was engaged in some back and forth involving both federal court and the Ohio legislature regarding redistricting. And so, without getting too far into the weeds, it’s a court that has already weighed in and weighed in in very closely divided decisions on questions of things like democracy. And so here, it’s pretty clear that a flip would be hugely consequential in terms of what democracy on the ground in Ohio looks like going forward. Okay. So that is, I think, a really useful high level overview of Ohio, the big, you know, possible flip state, and also Michigan and Montana. And you mentioned retention. Can we talk about Arizona what’s happening in Arizona.

Emily Pacini So Arizona is interesting. Lots going on in Arizona. Right now, just a few months ago, the state Supreme Court ruled that the 1864 abortion law could actually be enforced. And then there’s been a lot of back and forth with the state legislature over whether or not that that law could actually be enforced because of the the public outcry after that, that ruling by the court. There are actually two justices up for what is called a retention election this November. And in a retention election, there isn’t the traditional incumbent versus. A challenger. Instead, the incumbent justices are presented to the voters, and the voters are then asked to vote yes, I do retain this. I want to retain this person on the bench or no, I do not want to retain. And basically that’s an an up or down vote, you know, whether or not that person should keep their job. And so there are two justices, Clint Bolick and Katherine King, who are on the ballot this November for that retention vote. And there there has been talk. There has been effort and effort in organizing around at a vote no retention campaign for those two justices, to hold them accountable for that, for that ruling that they made on abortion. And we’ve seen again since 2022 with Dobbs, that abortion continues to be a very mobilizing and even persuasive message in, in races up and down the ballot.

Kate Shaw So and I think that’s right. Historically, there is always been an understanding that retention elections are just a rubber stamp. Voters always retain sitting judges or justices, because people tend not to have huge amounts of information about particular judges or justices or their rulings. But abortion might be an important exception. People were very aware and very galvanized by Conservative Court’s decision to allow the enforcement of this 1864 abortion ban, you know, obviously signed into law by a body women couldn’t participate in, you know, half a century before women could even participate in the political process by voting. And yet that that court allowed the enforcement. And so it sounds like there is a view, maybe on your part and I presume on the ground in Arizona, if people are mobilizing around it like this could be the rare exception where there could be a successful push to vote no on retention for, you know, these two justices. Now, that wouldn’t change the balance of the court. But tell us what would happen. So if they’re not retained, that’s two of the seven justices. What happens? How are those seats filled?

Emily Pacini So what would happen is the governor, who right now is Democrat Katie Hobbs, would have the power to appoint two new justices. Now, there is, a process by which people have to apply to a committee, and then a committee reviews those applications, and then this committee Commission then sends recommendations up to the governor, and she picks from those recommendations. So so that’s one possibility, one wrinkle to throw into this whole, situation is that the state legislature did a legislative preferred ballot amendment that will be on the November ballot that would actually, make state Supreme Court justices and Arizona appointed for life. So it would basically get rid of term limits, would get rid of the retention elections. And Arizona actually has a mandatory retirement age for justices that would all go out the window. So if that ballot measure were to pass in November and voters actually voted not to retain those two justices, the voters will would be completely overturned because that ballot measure would actually be retroactive. So there’s a big chess game going on in Arizona right now regarding the courts. Wow.

Kate Shaw Okay, this is all really illuminating. And maybe just a beat on North Carolina, which is I know another state that people are talking about as an important state Supreme Court election. As I mentioned, we’re going to talk to a justice running for retention on that court, Justice Allison Riggs. So so what does that court look like?

Emily Pacini So right now, the pro civil liberties, justices are in the minority in that court. It’s A52 court, I believe, right now. And there’s one justice, on the ballot for for election. And it’s Justice Allison Riggs. She was actually just appointed to that seat, last year, I believe. So this will be her first, first time running. Whether or not Justice Riggs wins will not change the current balance of power on that court. However, it is really crucial, for future cycles, that we hold as many pro civil liberties justice as we can, because it will lay the groundwork for us to be able to, potentially shift that balance of power in 2026 or 2028. So we don’t want to see any backsliding in a state like North Carolina.

Kate Shaw And that’s a really good segue to thinking a little bit more long term about some of these courts. So, okay, so a state like North Carolina only one seat up for election this cycle, but there will be obviously more seats in future cycles. What about other states that you are looking at where what happens on the ballot in November won’t necessarily change the balance of the court, but where there could be inroads made towards more progressive or more pro civil liberties majorities, on courts that might look, you know, pretty conservative or pretty skeptical about civil liberties. As of 2024.

Emily Pacini We have actually mapped out the landscape of these courts through 2030 because we want to go ahead. We need to be strategic in how we invest in these races. Is and how we identify targets. And plus, it’s because they are so complicated about which seats are up and what years that these these races are on the ballot. It’s important to really map that out over multiple cycles. And so what we are seeing is over the next two and three cycles, that there will continue to be opportunities to protect important majorities in Montana, Michigan, Wisconsin, Pennsylvania. But there will also be opportunities to shift, the balance of power, unimportant ports like Ohio on Arizona. And then we also have some really great opportunities in southern states. So states like North Carolina, states like Georgia and even Kentucky, there will be opportunities to potentially shift those courts to a more pro civil liberties majority.

Kate Shaw And I want to say just a word about Wisconsin, which is a court that we’ve talked about on this podcast a lot. And in April of 2025, there will be another election that will determine, you know, the control of that court. And Walsh Bradley, who’s been on the court since 1995 and is part of the Progressive Bloc, is retiring. So there will be an open seat. And we know at least two of the candidates running to fill that seat. There is progressive Susan Crawford, who Bradley had, I think is already endorsed, and then former Republican Attorney General Brad Schimmel, who as far as I can tell, it looks a lot like Dan Kelly, who is the, you know, former Supreme Court justice on an on that court, very MAGA justice who recently ran for the seat that is now held by Justice Janet Proto, say Wittes. And that’s a 2025 election. So that is going to be one that is going to be hugely important. I think a lot of attention will shift there as soon as we are through the November cycle. And then you mentioned some of these kind of longer term goals. And then what about some of these courts that just look kind of out of reach right now? So the Florida Supreme Court, which is controlled by there are seven conservatives on that court. That court recently allowed the enforcement of that state’s, you know, near-total abortion ban, although it did by A43 vote, allow the voters to actually consider whether protect reproductive freedom by a ballot initiative that they will have a chance to vote on also in this cycle. But is that a court or the Texas Supreme Court, which is A90, you know, either conservative or anti civil liberties court, are those courts where individuals who care about these bodies should just say, like those are lost causes, we should focus attention elsewhere, or might there be ways to get a toehold in even courts like that?

Emily Pacini States like Florida and Texas are obviously tough. I mean, they’re huge states, you know, huge geographies, lots of voters of very expensive states to run campaigns in. But I don’t think it’s worth outside the realm of possibility that we can make progress on these courts. Because just like you said, I mean, they have been in the news, they are in the news constantly over issues of abortion, voting rights, privacy, gun control, LGBTQ, plus rights. Looking specifically at Texas, there is already work that has started in that, and that is ongoing right now to elevate the profile of the state Supreme Court, particularly around a couple of of, seats that are up this year. There’s a wonderful organizer on the ground. Her name is Gina Ortiz Jones, and she has really picked up the mantle in, in, in running with this and is really trying to, bring attention and focus to what is going on in Texas. She started a PAC called the Find Out PAC. And she is doing what needs to be done, and that is building the on the ground infrastructure, raising the profile of these races, and making sure that people understand that the decisions that these judges are making have very real consequences in people’s lives. And so I just I really applaud what they’re doing in Texas. And, and I think there will be opportunities in, in upcoming cycles to, to really dig in and, and do good work there.

Kate Shaw Terrific. So that has been a lot of really, really useful information. We have covered a lot of ground in terms of many of the big judicial races. Just as we wrap up, where should people who are looking to learn more about their own state high courts or get involved in some of these races, go either to financially support or to volunteer their time.

Emily Pacini So, I should say that, you know, the ACLU is a nonpartisan organization, and we actually don’t endorse or oppose candidates running for office. And we see our role in these races as educating voters on where candidates stand on important civil rights issues so that they can make an informed decision at the ballot box. And so we have created a web tool, aclu.org/vote, where people can go and learn more about the offices that are on the ballot. They can get registered to vote. They can actually learn where their polling location is. And if folks want to dig in more into the the finer details of what these state courts are doing, they can visit our state Supreme Court initiative project also at the aclu.org. And then for getting involved locally. I mean, I encourage you to find out who’s on your ballot. Reach out to those local campaigns, knock on a door, send a postcard, make a phone call, put up a yard sign. It all matters.

Kate Shaw All right. Well, that’s a great place to leave it. Emily Pacini, that was super illuminating. Thank you so much for taking the time to be with us today.

Emily Pacini Thank you so much.

Leah Litman [AD]

Kate Shaw Okay, welcome back to Strict Scrutiny. I am still Kate Shaw, now joined by co-host Leah Litman.

Leah Litman And for this segment of our State Courts extravaganza, we are delighted to be joined by two people running for judicial office in super important elections. Kimberly Thomas, who’s running for the Michigan Supreme Court, Go Blue Hale and Allison Riggs, who’s running for the North Carolina Supreme Court. Let’s introduce each of them first.

Kate Shaw Kimberly is a colleague of our very own, Leah Litman, at the University of Michigan Law School, where she’s a clinical professor of law and the director and co-founder of the Juvenile Justice Clinic. Kimberly, welcome to strict scrutiny.

Kimberly Thomas And it’s great to be here.

Leah Litman Second, Allison Riggs is currently on the North Carolina Supreme Court. She was appointed in 2023 by Governor Roy Cooper and is now running for reelection. Justice Riggs, welcome to the show.

Allison Riggs And thank you all for having me.

Leah Litman So, Kimberly, how did you decide to run for election? We had pretty great jobs. But you said I’d like to go for the Michigan Supreme Court.

Kimberly Thomas Yeah. So I think that listeners of strict scrutiny understand how important, especially right now, our state supreme courts are. And I appreciate, of course, the focus, on those state supreme courts. So if you’re someone like me who cares tremendously about the quality of justice that people get in our state, if you have the legal expertise, you have the practice experience. It feels like time to step up. So that’s what I’m doing.

Kate Shaw What is it like you’re shifting from life as a law professor to running for judicial office statewide? What has that been like?

Kimberly Thomas It’s actually been really great. So I’ve been traveling all over Michigan. I’ve been talking with people about the courts, helping them understand what our state Supreme Court does. Hearing from them about how the court interacts with their lives. And so, you know, I was a reporter before I went to law school. So I really have enjoyed talking to people across the state about their stories. It is also incredibly busy. So it’s certainly, you know, running a campaign and being a law professor and working with students and clients and being a mom. It’s, you know, it’s, it’s a bit of a whirlwind, but it has mostly been fantastic.

Leah Litman So we’ve now alluded to the fact that you are right now, a colleague of mine at the University of Michigan Law School. Could you tell us a little bit more about your experience prior to this decision to run?

Kimberly Thomas Yeah. So I’m on the faculty at the University of Michigan Law School, and what I do is mostly teach students the practice of law. So I work with students to help them know how to be good lawyers, how to understand the ethics of our profession, how to work with clients, and how to litigate in state court. I run our juvenile Justice clinic, and so we work there with court involved young people, and try to connect them to their schools and families and communities. And so that is incredible work to do and incredible work to do with amazing law students. So I really enjoy that work. I’ve been an attorney for 25 years and so have really had, you know, hundreds if not thousands of clients in our state trial courts, in our court of appeals and in our state Supreme Court. So really, yeah, really looking forward to doing something different.

Kate Shaw And Justice Riggs, let’s bring you in. Can you tell our listeners a bit about your experience prior to taking the bench last year? And then also, just what was the appointment process like? Because you went through that and now you’re running. And so those are two different processes. Give shed some insight into kind of what that looked like.

Allison Riggs Thanks for having me, Kate. And thanks for letting me share a little bit about my background. I was a long time civil rights attorney. I practiced for nearly 15 years at a nonprofit in Durham, the Southern Coalition for Social Justice. I worked on a variety of different issues, from environmental justice to voting rights, and practiced in state and federal courts all across the South, including arguing twice in the United States Supreme Court. And most of my clients were from historically excluded or marginalized communities. And so I was working with them to essentially bang on the doors to the courthouse demanding justice. And I certainly recognized having been a long time litigator. It matters the character and integrity of the judge, the legal acumen and prowess of the judge sitting and listening to your client’s case. And so, you know, the bench was something that was in the future, I thought for me, I hoped. But like many younger women in our profession, I thought it was ten years down the road, 15 years down the road. But we lost control of our North Carolina state supreme court in the November 22nd election, right after the Dobbs decision. And my understanding that state courts were going to be the front for the fight for reproductive freedoms. And as someone who was newly wed and hoping to start a family in my early 40s, this was something that was important to me. And, so that’s how I ended up, as the youngest woman to ever serve on the North Carolina Supreme Court.

Leah Litman That is quite the story. I. I wanted to just say something about, you know, some of the previous elections that flipped control of the North Carolina Supreme Court leading up to 2022. You know, one of those elections, Justice Cheri Beasley, you know, lost her seat on the North Carolina Supreme Court by 401 or, you know, around 400 votes. So if you think, right, elections voting don’t matter. They matter a ton, particularly when we are talking about state and local elections, judicial elections. So I have to put in a plug again for Vote Save America is organizing campaign. You know, they have set a target for signing up 75,000 volunteers, to help get out the vote. So if you are thinking, what can I do to, you know, help in this upcoming election, that is definitely something that could have huge payoffs. You know, looking ahead to the future. So, Justice Riggs, staying on your court for a little bit, you know, what can you tell us about the North Carolina Supreme Court specifically? You know, it’s makeup. You mentioned it changed recently. Of course, the kinds of cases, it hears its vibes, you know, whatever you would like to share.

Allison Riggs So I serve on a court that is currently comprised of five Republicans and two Democrats. Yes. Our, judicial seats are Partizan. The Republican legislature decided last decade to make these Partizan elections. The court flipped in November of 22, and, the court quite quickly went to retract decisions that struck down extreme Partizan gerrymandering struck down, what a trial court had found to be racially a racially discriminatory voter ID law. And we’ve seen revisiting of decisions and cases, pretty much nonstop since then. So that’s the vibe in North Carolina. I write a lot of dissents. I want to write majority opinions. And so we are building the infrastructure needed to win back our courts for justice. It’s not going to happen overnight. I have to keep my seat this year. We have to reelect the incredible Justice Anita Earls in 2026. And then in 2028, we have three Republicans whose terms will be up and a chance to flip our court before the next round of regular redistricting, including reclaiming the very important chief justice seat. When Chief Justice Beasley lost by 401 votes out of 5.4 million, you can be sure that every time I’m out there knocking on doors and speaking to voters in this state, I am doing the math for them 0.000000% that that was the margin. And so don’t ever, ever in this state stand up and say your vote doesn’t matter. So we are working to make sure that the Chief justice, who set so many rules and policies for the administration of justice in our state courts, is someone who shares our values and our commitment to justice.

Kate Shaw That’s such a great overview of this kind of four year plan. So the court is not going to flip this fall, but retaining your seat this fall. Justice early in 26 does actually like lay the foundations for control in 2028. So all of that is super important. You mentioned Justice Riggs conversations you’re having about the importance of voting when you’re talking to voters. And I want to ask both of you, maybe, Kimberly, if you want to start when you’re having substantive conversations with audiences about the kind of justice you’ll be, what are you telling them? And, you know, Justice Riggs, in your case, what kind of justice you’ll continue to be. So, Kimberly, let’s start with you.

Kimberly Thomas I think people have, concerns about our courts. People have concerns about the integrity of the court. And so they really want to see people on their state supreme courts that have deep expertise, that have, a record of integrity, who have a knowledge of how our courts work and, frankly, who understand what the impact is of the decisions on people in the state that are really, you know, focused in on, you know, how the courts matter to their lives. You know, Michigan had sort of a period about 15 years ago where we were nationally known for sort of internal dysfunction in our court. And so people also want, you know, justices who can collaborate, who can be problem solvers and not sort of guess in the national press. Again, for for that kind of, you know, reputation.

Kate Shaw And how about you, Justice Riggs?

Allison Riggs Yeah. I think, in non-legal communities, folks don’t understand what our courts and particularly what our state courts do. So helping people understand that we make decisions relating to public education and its funding. We make decisions about workers comp cases. If someone who’s injured on the workplace can get back on their feet and back to work with the, the support of the law is created to help them do just that. It it there’s enough of what we do. I view it as like I’ve got a deck of playing. Cards in my head, and I first asked the question of what a voter cares about, and then if it’s the environment, I can tell them that when Democrats controlled the Supreme Court here in North Carolina, we had rulings that said when big, big energy companies spill toxins into your rivers and lakes, they have to clean it up without completely passing the cost down to consumers, which means low income and older, families lose their homes, that they cannot absorb that $100 $150 a month hike in energy costs. So there’s I’ve got the cards. I think the legal community really wants to see experienced, respectful attorneys. I tell people the story about the first time I argued in the U.S. Supreme Court, Justice Kagan, I was a little nervous. I stepped up and to the podium, and my knees might have been knocking a little bit, but Justice Kagan just gently smiled at me to send in totally appropriate but nonverbal cues that I read as you’re welcome here. I know you worked hard to get here. I’m interested to hear what you have to say, and I do that now. To every person who stands up in front of my bench, I it doesn’t matter what their argument is, they worked hard to get there. They’re representing a client who’s relying on them and that respect that I send. The nonverbal messages that I send from the bench are very important to our legal community and to anyone who’s watching how we can put ourselves on the on the bench.

Leah Litman So, Justice Riggs, you already kind of began to answer this, but I, I’d still like to put, you know, the question to both of you, which is how do you try to tell people they should care about state courts? Whoever wants to go first can go first in tackling that one.

Allison Riggs I hear a lot of opinions from people about the US Supreme Court when I talk to voters. And so reminding them that upwards of 90% of the cases in our court system are in state courts. And so as much as we also want to have people understand and focus on the US Supreme Court, you know, the state courts are making some of those. You know, of course, your listeners know decisions around the country and our state supreme courts that are impacting people’s lives in such fundamental ways and really, helping, you know, people see that connection. You know, so, you know, people can of Michigan can decide if they want to vote for this Justice Thomas or not. So and they have the direct.

Kate Shaw Are you worried they will be confused?

Leah Litman We’ll call you Justice Kimberly Thomas?

Kimberly Thomas Yeah. Just.

Leah Litman To avoid any confusion.

Kimberly Thomas So, you know, they have a direct say and who they want to see. You know, what kind of, values and experience they want on their state Supreme Court. And I think that that’s really important to keep front and center in people’s minds. What I can say is I’m having a similar experience, as Professor Thomas, there’s a lot of folks who may not understand the distinction between federal courts and state courts, and there’s a lot of anger and resentment about the US Supreme Court. So I’m encouraging people to harness that, that feeling in North Carolina, we have the opportunity to elect our justices and change our courts if we don’t like what they’re doing. And so that’s a power that people have. And then beyond that, just it’s a it’s an educational role. It’s civics education. And our judges and then injustices have a responsibility and an obligation to, to teach people about what we do. And I remind folks that, look, I went to the US Supreme Court asking them to rein in Partizan gerrymandering. And they said, no, no, go to the state courts. So guess what? It’s state courts. Now we get to do that. Same thing. The US Supreme Court sent the issue of abortion and reproductive freedom back to the states. Now it’s the state courts. We’ve seen what the Florida Supreme Court, the Alabama Supreme Court, the Texas Supreme Court, and the Arizona Supreme Court have done, we can have state courts that interpret state constitutions in a way that expand and protect our rights and freedoms, not limit them. So this is why state courts matter.

Leah Litman So on that optimistic note, I think we should probably and Kimberly Thomas, running for the Michigan Supreme Court and Justice Allison Riggs running to stay on the North Carolina Supreme Court. Thank you both so much for taking the time to join us today.

Kimberly Thomas Thank you so much. It’s great to be here.

Allison Riggs Thank you.

Kate Shaw And I just want to quickly underscore something that Leah alluded to a couple of minutes ago, which is that listeners who now understand the dynamics across the country this year as it relates to state supreme courts, and our friends at Voters of America are focused on helping elect progressive justices to the bench, and have a lot of high impact volunteer opportunities to do that. You can sign up for organize or else to help Vote Save America. Go to Vote Save America. Com Forward Slash 2024.

Leah Litman [AD]

Kate Shaw Welcome back to Strict Scrutiny. I am your lone host for this segment in today’s state Court extravaganza Kickoff and continuing with our conversation, we are bringing you today a discussion of an incredibly alarming development in some states and on some state high courts. And to have that conversation, we’ve got two terrific guests, Justice Anita Earls of the North Carolina Supreme Court and Professor Miriam Cipher at the University of Wisconsin-Madison Law School. Let me begin by briefly introducing them. First, Justice Anita Earl sits on the North Carolina Supreme Court. She was elected to that court in 2018 after a career as a civil rights lawyer, which included time in the Civil Rights Division of the Department of Justice, and also as the executive director of the Southern Coalition for Social Justice. Justice Earls welcome to Strict Scrutiny.

Anita Earls Yes. Thank you for having me.

Kate Shaw And Miriam Cipher is a professor of law at the University of Wisconsin Law School, where she is also co-director of the State Democracy Research Initiative. She’s an expert in all things state courts, state constitutions and state law and institutions more broadly. She is also a returning guest. So, Miriam, welcome back to the pod.

Miriam Cipher Thank you. It’s great to be back.

Kate Shaw So in today’s conversation, we’re going to talk about a phenomenon that may be under the radar for some people, but that has significant consequences for judicial independence. And the phenomenon I’m talking about is judicial disciplinary proceedings, which we have seen weaponized against state Supreme Court justices in ways that have enormous consequences for the independence of state courts and for state level democracy more broadly. And one of the people who has been the target of such proceedings is Justice Earls. So, Justice Earls, you have just emerged from this process. So can you tell our listeners a little bit about what triggered this event, in which you all of a sudden found yourself the target of a disciplinary complaint?

Anita Earls Yes. Well, and let me first say how I have the greatest respect for the fact that it as a state court system, we have a judicial standards commission. We have a code of judicial conduct. I think that that process, when used appropriately, is very important and helps, improve the administration of justice. In my case, there were actually two complaints filed against me. The first one, I got notice of it in March of 2023. And the allegation was that I had improperly talked about some administrative changes that were happening in our court system. So it was about my speech and what I had said publicly. And the just the challenging thing is that it was investigated. Right. So I got notice that the commission had had, issued an order that I be investigated. And so I went through the process. I hired an attorney. I got witness statements to to back up my claims that as a justice, I was allowed to talk about administrative changes to our court system. I had about an hour and a half investigative interview, and ultimately, that complaint was dismissed. All that happened confidentially. But, you know, I went through the process, and then, just about a month after that was dismissed, I got notice of a second complaint against me again about something I had said publicly, this time about, comments I gave in an interview with Law360. Responding to a report that our state solicitor general had issued about, the the lack of diversity along race and gender lines of advocates who argue in our court. And and the interview was asking questions about what causes this, what can we do about it? And as a result of that, in August of 2023, I was notified again that again I would be investigated. And in fact, the letter notice letter said they were reopening the prior investigation. And, and and at that point, I, I felt strongly that this was, not a proper use of the judicial standard process. And I filed a federal lawsuit seeking to assert my First Amendment rights to be able to speak about those issues.

Kate Shaw Right. Okay. So let me try to draw out a couple of things in the story they just told justice URLs. So the fact of the complaints is not unusual, right? People must make complaints about sitting judges at all levels of the state judiciary and the federal judiciary. Routinely. Right. And that could be people with legitimate grievances or just unhappy litigants who, you know, disagree with the outcome in a particular case. So I’m sure it runs the gamut. But what’s unique about your situation, justice URLs, is that it was not just that there were a couple of complaints, but that there were investigations of both of them. Is that fair to say?

Anita Earls Absolutely. The and that’s what I allege in the lawsuit, the past data about the commission shows that they only investigate about 6% of the complaints they received. And I actually don’t know, there might have been many, many complaints filed against me that were just dismissed as. Groundless. But when the commission sets and votes to investigate, that means they believe there could be some merit to it. And that’s that’s what’s troubling.

Kate Shaw Yeah. And I want to get into sort of what kind of body this commission is, and talk more about it in detail in a couple of minutes, but maybe to say a little bit more about the substance of the interview that triggered that second investigation, because, as you said, justice earlier, you know, the kind of the premise of the interview was that the state solicitor general, right. Ryan Park, had coauthored a report about the lack of diversity in the North Carolina court system, kind of broadly speaking. And that included, I think, but wasn’t limited to the advocates who appear before the North Carolina Supreme Court. And so the question that was put to you by the reporter for law360.com was, why are oral advocates that come before the North Carolina Supreme Court overwhelmingly male and white, despite a diverse population and state bar membership? And you provided a bunch of really thoughtful answers that tried to get at the kind of question of why. So this was, again responding to questions posed to you. And if it’s okay, I’ll just read for our listeners a couple of excerpts from the answers that you gave. So here’s one quoting. Part of it is the current pool of who’s eligible to argue in front of us, and then who decides who gets to do the arguments. But then beyond that, what is the pipeline to arguing in front of us? If you look at who is hired to serve as clerks to the justices, we have plenty of female clerks. But on racial diversity, we are lacking for the term. That just started in January, there were 14 or 15 law clerks serving in our court. No African-Americans, one Latina. And then you sort of went on to say, I think another part of this in terms of gender and race, implicit bias is at play. You talk about some experiences of being on the bench, feeling like your colleagues on the bench are unfairly cutting off a female advocate. That in one instance, there was a black woman advocate arguing in front of the court who is being treated unfairly as compared to other advocates who appear before the court. And you say very clearly, I’m not suggesting that any of this is conscious, intentional racial animus, but I think that our court system, like any other court system, is made up of human beings. And I believe the research that shows that we all have implicit biases, so nuanced and careful and thoughtful attempts to grapple with the findings of a study that I don’t think anybody could dispute. There are just disparities. And who is arguing before the North Carolina Supreme Court. And then there was one other part of the conversation in which you discussed the decision to end programs aimed at increasing equity and tackling implicit bias within the North Carolina system. So this interview was what triggered the second complaint and investigation, and that’s what led to the federal lawsuit. So maybe before we get to the federal lawsuit, if we could talk a little bit about this commission and maybe Miriam, can I bring you in here just to situate the North Carolina Commission in the context of these sort of judicial conduct or disciplinary commissions writ large? And, Miriam, I know that the State Democracy Research Initiative has a forthcoming white paper on the very topic of state judicial conduct commissions, and that’s, I believe, authored by your colleague Brenna Gardner. So what are you learning about these commissions? Is North Carolina’s representative. Just give our listeners a sense of what these bodies are.

Miriam Cipher In the broadest strokes, there is similarity across the country. Every state has a commission to oversee judicial conduct. And as a shorthand, I’ll follow a convention and call these judicial conduct commissions, although they have different names in each state. These are entities that states formed in the 1960s through 1980s with nudges from the American Bar Association, state bar associations, and some state level scandals. Indeed, you may know, Kate, that a young John Paul Stevens was involved in the early efforts to establish judicial oversight in Illinois after a scandal shook that state Supreme court, and he was chosen to lead a special commission that investigated. Now, the job of these commissions is often described as protecting the public and deterring judicial misconduct. And as you suggested, a state commission will often process hundreds of complaints a year, many of them baseless grievances. And sometimes they do catch egregious wrongdoing. Think of unconscionable sentencing practices of kickbacks from parties of engaging in abusive or harassing behavior. And indeed, to the extent that there is a literature on these commissions, a recurring fear is that the commissions will be influenced by or embedded in the judiciary, and they will be too lenient against real problems. Now, North Carolina’s changes here. So North Carolina, revise the structure of its commission last year and its changes fit into a different pattern across the country. And that is various ways that state legislatures have tried to influence and sometimes undermine or overtake state courts. You may have heard about state level court packing or efforts to gerrymander judicial districts, or to repopulate judicial nominating commissions for political advantage. And the co-opting of judicial conduct. Commissions is an even subtler technique that can fit in with that pattern of behavior. And finally, the new composition of the North Carolina Commission, is not representative of other commissions around the country. The changes that the legislature implemented in the 2023 budget bill put it in the minority of states that have direct legislative appointments to these bodies. But I think what really stands out is the politics and the way this fits into a pattern in North Carolina and elsewhere, that where the legislature or governor are at odds with a court, you see motivated structural change to a judiciary.

Kate Shaw Just to say a little more about a couple of things that Maria mentioned. We have talked about judicial gerrymandering in a recent episode with Jill J. Big of the Public Rights Project, and actually attempts to manipulate the composition of nominating commissions. We talked to a couple of the ProPublica reporters who did the Leonard Leo series. We Don’t Talk about Leonard with WNYC. So these are, you know, I think now kind of efforts and dynamics that are sort of bubbling up and coming to kind of public attention. But I do think that until Justice Earle’s you began to speak publicly. You filed this federal lawsuit, which I want to turn to in a minute. And also, you know, there have been a couple of other relatively high profile uses of commissions, I think, to to target sitting justices. And so that I think is coming to the public’s attention. And I think in an important way, Miriam, as you said, this is a subtle technique that the proceedings are often confidential, which does mean the public may be totally unaware of this, you know, effort that could have, you know, existential consequences for a justice who is the target of of a complaint and investigation. And maybe before we get to the federal lawsuit, Justice Earles, can you talk about that? So when an investigation begins, what does that consist of, and what are the possible consequences that such a commission could mete out at the end of an investigation?

Anita Earls So the investigation can result in the complaint being dismissed, which is what ultimately happened with the second complaint against me as well. The rules provide that the commission can issue a letter of caution, which can remain confidential. But if the commission decides to discipline, then, the matter goes to a full blown adversarial hearing. And at that point, the judge whose behavior is being examined finally has the right to know who filed the complaint against them. But and then after that hearing, then the commission to recommend discipline, and it’s actually the Supreme Court that ultimately imposes discipline. But discipline can range from, a censure or a reprimand, a suspension or removal from the bench. And removal has happened. And, and I’ll just say that all of this in my case, happened in the context in which the legislature had previously, there had been calls to impeach me, because of redistricting litigation in our state. And the other thing I’ll say, just from a kind of administration of justice, good government perspective. This commission was established in 1973, and it was intended to be a broad based, representative commission. So five members were appointed by the Chief Justice, two by the General Assembly, two by the governor and four by the four were attorneys appointed by the Bar Association. So it was broad based appointment authority. The change that resulted in six being appointed by the Chief Justice and six by the General Assembly. So that politically in our state, that means Republicans now control 12 of the 14 members on this commission, and only two appointed by the governor. No attorneys. The bar association has no role any longer. All of that happened in a budget bill with no public debate, no input, no discussion about why these changes might be a good idea for the state, why they were necessary, what the implications of. There might be no input at all. It just, it just that change happened and that’s where we are now.

Kate Shaw Wow. And of course, North Carolina does have a Democratic governor. So there are two Democratic appointees. But of course, that might not always be the case. And so then you could really have all 14 members of this commission appointed by the party that controls all of the branches of the state government and brought to bear right against the full weight of this disciplinary authority, you know, up to and including removal on, say, you know, someone who was elected statewide as a Democrat, as you were. Right, because they are Partizan in the judicial elections in the state of North Carolina. So that is really, really sort of striking. And none of this is right, is to suggest that there’s there may not be some role historically and even in contemporary terms, as you said at the outset, just as orals for commissions in the context of genuine misconduct. And Mary, you referenced young John Stevens work investigating the Illinois Supreme Court that’s documented, chronicled in a great book by Ken Bannister called Illinois Justice. And there’s a documentary as well, sort of based on the book. And there was, you know, genuine misconduct and wrongdoing on the Illinois Supreme Court. The investigation not only catapulted young John Stevens to the sort of national spotlight in the Seventh Circuit and then the Supreme Court, but also resulted in the resignation from the court of several justices. So so there’s no suggestion anywhere in this conversation that there’s not a role for these sorts of commissions. But I think that what both of you are talking about is a real shift and a real shift in the sort of focus of these commissions, the composition of the of the bodies, and what feels like the injection of politics into a process that. At least in its original design, was at least bipartisan. Maybe not apolitical. Maybe nothing is ever apolitical. But there’s been a turn toward the political. That is not something we’ve seen before. Okay, so the stakes are incredibly high. And the investigation is open this second investigation. And so then, justice, early in August, you said you filed a federal lawsuit. So can you talk a little bit about the decision to file and also the content of the claims in that suit?

Anita Earls I will say, as someone who was a civil rights attorney for 30 years before coming on the bench, I didn’t until now appreciate the incredible courage that my clients exhibited in being willing to put their names forward. And of course, it was not in any sense an easy decision, but it just seemed clear to me that I was being investigated for everything I said publicly, and that as an elected member of this court, I had a role to speak to the public about the administration of justice. And so, for example, I’m co-chair of a governor’s task force on racial equity and criminal justice issues that the public really cares about and that, the only protection that, from these continued investigations of me, you know, it is burdensome. There is, from my perspective, having to hire an attorney and pay for them out of my own pocket. Having to go through the process of marshaling my evidence and making my case, takes me away from the other duties. But I think, even more importantly, to me, I had a sense that this was not only impacting me, but it was impacting other judges and trial court judges across the state. And so filing a lawsuit meant all this would become public in a way that it wasn’t before. And I do feel there’s value in transparency and shining a light on what’s going on. But after I filed the lawsuit, two other African-American judges called me and said, the same thing is happening to us, but we can’t be public about it. And, and, and it was that sense that I had that this it wasn’t only me, but that others were not in a position to assert their rights, that, that it was important to try to, be clear about why I felt I had, and honestly, I would say not only the right, but a responsibility. I understand the canons and the code of judicial conduct when it says that a judge should uphold the integrity and independence of the judiciary, and should respect and conduct yourself in a manner that promotes public confidence in the integrity of the judiciary. That says to me that if I see something that is that is harming the judicial independence, that I should speak up. And it seemed to me that it was important to to try to make clear that it is part of my duty as an elected judge to speak to these issues that people care about. I mean, you know, law 360 is publishing reports and asking questions about why is this happening? And, I didn’t think that it was correct for me to just dodge that or say, oh, I can’t comment. When when it’s important to the public, it’s important to lawyers, it’s important to our judicial system. And the other thing that happened once I filed the lawsuit in federal court, was that state based groups such as the North Carolina Alliance of Black Elected Officials and national civil rights groups such as the Lawyers Committee, the and the NAACP Legal Defense Fund, ACLU. A whole range of groups, engaged in advocacy around the importance of having these discussions about racial equity, in our court system. And so that took the form of letters that were written to the Judicial Standards Commission. There was a full page ad taken out in the Raleigh News and Observer, in supporting me and. I just I don’t know if it’s and if that’s an important part of the story. And I obviously have no insight, a particular insight into what impact it necessarily had. But to me, it was significant that there was broad national support that that came forward and was expressed. And I and I just have to add that my observation and this is not, I haven’t done counts, but but since then, we have seen more diversity in the advocates in front of our court. And, and in the almost year since the law 360 article was published, I believe a new study would show some improvement. And so that’s maybe the good news in all of this, that we’ve had more advocates of color and more women arguing.

Kate Shaw So there’s so much in what you just said, Justice Earls. It’s a difficult thing, right, to put yourself out there as a litigant when you have been, you know, a civil rights lawyer representing parties and now a sitting justice on this apex court, but it’s obviously not for the glory that you’re deciding to put your name on a federal lawsuit. It is both because the public deserves to know that this is happening, and also because there may be other judges. So you’re on this apex court, and you’re the only black justice on this court. And as far as we know, the only justice on this court to have been the target of this kind of investigation, I mean, precisely for calling out. Right, lack of diversity on in the bar and maybe in treatment for those advocates of color who do appear before the court. But it turns out that you’re not the only one going through this. And I’m not sure if you’re talking about judges in state or out of state. And I’m not asking. But but it is clearly something that is this is part of a larger phenomenon. And so for that reason, it felt really important to, to, you know, to respond in some way in particular because this these alleged violations were all both done publicly in terms of public comments, but also very clearly and self-consciously in the spirit of not only permitted, but maybe, on your view, required conduct, which is to speak about improving the judicial system. That’s always been something that in the federal and state canons. I don’t know of any exception. You know, sitting judges are permitted to speak about, even if there are things that are off limits. Improving the system of justice is always something that, judges can speak about. So. So it’s basically a First Amendment argument that you’re making in the federal lawsuit. Do you want to say anything more about the claims in the suit? Like what was the argument that you were making in that complaint?

Anita Earls Well that the investigation, not that the fact that a complaint was filed, but that the fact that the commission saw fit to investigate it, the thought that that was and, you know, chilling my speech in a way that that, that the First Amendment doesn’t permit. And, and I will say, you know, that once the commission dismissed the complaint against me, I dismissed my lawsuit. So we never, you know, we never got very far in the litigation. But but I think the other thing that, I found remarkable was that I didn’t talk to a single justice on any other court outside of North Carolina who felt that I should not be able to talk about these issues. Yeah. Other folks would say, I disagree with you 100%, you know, but I but you shouldn’t be you shouldn’t be, disciplined for for what you said. And and I think that that’s important to note. Yeah. And I think the other thing, that is important is to recognize the broader context that this is happening in, that courts are not isolated from our politics generally. And so we have this is a state in which our university system is now dismantling all Dei programs at all. You know, state institutions of higher education. So I think it’s also important to think about how our courts, are not walled off. And yet judicial independence is supposed to be about that. We do not fall, you know, we do not fall prey to, the winds of of, our politics and that we uphold the law and the law that I want to uphold, and I believe I was sworn to uphold is the principle of equal justice under the law.

Kate Shaw Yeah. That’s right. These are just essentially different ways for the North Carolina legislature. Now, it’s not acting directly to this commission, but if it’s general kind of overriding view is that Dei programs need to be dismantled. It’s, you know, it’s it follows from that premise may be that justices who speak about diversity and equity and inclusion and those as important values that, you know, should guide all of us that that that somehow needs to be stamped out, just like formal Dei training programs in state universities. That is all part of kind of a larger, very political project. So when did the commission then dismiss the complaint?

Anita Earls In December of 2023.

Kate Shaw Okay. And then shortly thereafter, you dismissed a federal lawsuit because when there’s no more pending investigation, there’s no need to pursue that litigation. And you’d made a statement when you dismissed the lawsuit, basically saying you continue to believe that the First Amendment is applicable here. It protects your ability to speak, including to speak about matters of racial equity in the legal system. But, of course, with the commission having dismissed the complaint and no live prospect of discipline, there’s no need to continue with the litigation. So, Miriam, you talked generally about these commissions and other states. Can you talk about other instances, if you have seen any of similar uses of these sorts of disciplinary commissions and proceedings?

Miriam Cipher Yeah. The first thing to say is that it can be really difficult to see what’s going on in these commissions. As you’ve alluded to, it’s often not unless someone decides to come forward and tell their story. Transparency is typically limited to spare and of your reports, and all states have confidentiality rules about the proceedings themselves. And so one issue we consider in our research is how to improve transparency and oversight while also protecting confidentiality. But if we’re thinking of the problem as judicial conduct commissions, becoming co-opted by political forces or becoming the subject of hardball tactics, we can at least discern some patterns or recurring concerns. And so I’ll mention three. One is state legislative takeovers. In addition to North Carolina, Montana is a recent example of that. Montana is a state that has seen extreme conflict in recent years between its Republican state legislature and its state supreme court, really rising to near constitutional crisis proportions, and on judicial conduct commissions. The legislature passed a law that changed the way the commissioners are selected, stripping state judges power to appoint three of the five and giving that power to the House speaker and the Attorney general. And again, this fits into this pattern of inter branch conflict being carried out through these under the radar commissions. A second pattern of concern is where state officials can remove or fire judicial conduct commissioners without process. If there’s no process, you tend to get totally conflicting accounts of why someone was removed. Was it because they weren’t doing a good job? Or was it because political actors didn’t like their position in a particular judicial, discipline manner, which, of course, would really undermine their independence? The ABA recommends only for cause removal for commissioners, but that can be circumvented, as in states where appointees begin serving, before their confirmation vote so that, and a vote can then be held open sometimes for years. So the prospect of. Non confirmation still looms over them. There are stories like that out of Texas from a few years ago and just this year in Wisconsin. And then a third type of, you know, potential weaponization of these commissions. But really the trickiest to track is the possibility of biased or arbitrary enforcement. What if judges engaged in similar behavior aren’t treated similarly? Periodically, this concern has come up in states across the country, and sometimes it’s confirmed in a one off special study or in a state court opinion. But it’s very hard to track. Michigan is actually a state that is currently doing an audit. This year, it enlisted the National Center for State Courts to audit its commission actions for Racial disparities in response to a request from the Association of Black Judges of Michigan. And it’s possible that that kind of outside auditor approach could be an option to shed more light on what’s occurring elsewhere around the country.

Kate Shaw Do you know if the results of that study will be public?

Miriam Cipher I believe that they will be completed in December 2024. I’m not sure what the process is for disseminating them.

Kate Shaw Okay. All right. Well, we’ll check back in with you. Very. I mean, you can let us know, but that’s good to know that someone is is, at least with respect to one state court system, taking this question seriously. So that’s sort of high level kind of trends and themes. If I could just say a word about another similar episode involving justice, Jill Cross gave the Wisconsin Supreme Court, who has also been a guest on this podcast. Although not talking about this episode, she disclosed last year that she had been targeted by a disciplinary complaint, an investigation growing out of the oral argument in Trump versus Biden, which was one of former President Trump’s election related lawsuit seeking to throw out a number of Biden ballots. And as Justice Crosskeys questions really underscored in that oral argument, it did not appear to be a random subset of the state’s ballots that the Trump campaign sought to throw out, but instead ballots from the most racially diverse parts of the state of Wisconsin. And so that was the basis of this complaint and proceeding. And, you know, it took 18 months or something. And then that complaint was dismissed. But in some ways, it did sort of feel like it like preceded much of what was to come with respect to these proceedings we’re talking about today. Justice Crossley was also the target of a complaint following the removal of the director of state courts and his replacement with a new director also subsequently dismissed. But, you know, enormous burdens on individual judges and justices as you’ve been talking about justice URLs. These proceedings obviously impose, and it very much does not seem as though they are being initiated, you know, in an even handed way. So I don’t Mary, are there, you know, kind of general sort of takeaways with respect to what the bar and the public, should know about these commissions. I mean, there are two things that I think are worth talking about here. One, what kind of threat they might pose to judicial independence. And then second, what kind of what kind of threat they might pose to democracy. So maybe let’s talk about judicial independence first and then talk about state level democracy. You’re talking about sort of some of these specific trends. But, you know, if judicial independence is an important value, right. How do these commissions square with that value?

Miriam Cipher Sure. I think it’s important to at least start with the good news. We’ve been focusing our conversation today on problems, but around the country, as we said at the beginning, a lot of what these state judicial conduct commissions do is just basic good work. They process hundreds of complaints, they efficiently dismiss baseless complaints, and they have held judges accountable for true misconduct, which is all really important. But they can also be vulnerable to problems under enforcement is the usual concern. And what we’re talking about here is that weaponization that threatens judicial independence is a real concern, too. So in terms of, you know, what the bar and the public should know, the first step forward is really just awareness. This is a recurring theme that we see at the State Democracy Research Initiative, when state institutions or practices fly under the radar, which they so often do, that’s a recipe for opportunistic behavior. I think the public has already become more aware of how important state courts are. So now the public in the bar should realize that especially in states where the courts and other branches find themselves at odds, judicial conduct commissions could become part of that battlefield. And then I think, you know, there’s some thought to be given to design features. There is no structure that is fully immune to Hardball. And judicial conduct commissions do navigate a really tricky tension between independence and accountability. But there are some structural features that seem generally advisable, including many that are already recommended by groups like the ABA. And they include things like putting these institutions in constitutions rather than leaving them to legislative whim, ensuring multi-stakeholder representation and diversified appointment power rather than concentrating it in one branch. Building in mechanisms for transparency, for oversight, and establishing some basic procedures and time frames to check bad faith actions. Many state commissions do many of these things, but not all of them. I think beginning with awareness, though, if you’re interested in state courts, consider paying attention not just to who is on your state court, but also who oversees their conduct.

Kate Shaw And now to say maybe a word about how these commissions, or at least some uses of their processes, might pose a threat not only to judicial independence but also to democracy. Right? So, you know, these are proceedings that, as justice Earl was just describing, could result in the removal from the bench of someone who is elected statewide by a majority of the state’s voters. And and that means that a commission like this, operating completely under the radar, could quietly undo the will of the voters. And as we said before, Justice Earle’s, the other justice on the, North Carolina Supreme Court are elected statewide. And so I think there’s a way in which attacks on elected judges are not only attacks again, on their independence, but also attacks on democracy and justice. I’m not gonna ask you to respond to that observation, but maybe you could to make this point, you know, kind of clearer. Could you talk a little bit about the experience of running statewide for people who, you know, sometimes judicial elections are a mystery and a puzzle to some people, right. We think of judges as doing something once they are in place, very different from what governors or legislators do. And in some ways, the process for running, I think, is different. And in some ways it is the same. But maybe just to speak a little bit to your experience, what was it like running statewide? What did you talk to voters about? What did they ask and what did they say to you?

Anita Earls Well, I think for me, it was not all that different from work I had done before as a voting rights attorney. So my my goal as a candidate was to reach as many people as possible to talk about our court system, why it matters to them, and, and why they should care about, who sits in judgment of them. And, and to me, it is central to democracy. If you think of democracy as the principle that, you know, it’s governance by the consent of the governed, that you should have a say, in, in who makes decisions that impact your life. And we clearly see now, I think in this era, perhaps more than before, how state court judges and state supreme courts are making decisions that have fundamental impact on people’s lives in their state. And so running for office when I did run in 2018 was about, just talking to people about who I am, what I stand for, what my record has been, why I want to be on the court, and what my conception of justice is. So I think that’s also really important. So yes, you get the questions about what is your judicial philosophy that’s not so meaningful, but what do you think our justice system is supposed to deliver? And, and I think, in our in some instances, the political ads for judges have all been about criminal justice. You know, lock them up. If you lock them up, you’re a good judge. If you don’t lock them up, you’re not a good judge. And and I really wanted to convey to voters that our judicial system is meant to do a lot more than that, and that it was that it’s meant to protect our rights. And in this state, that means a right to sound basic education. It means a right to equal protection. And, and so there are just so many important ways in which, the aspects of. Your daily life are impacted by records. And that’s what I wanted to convey. And to me, that’s not inconsistent with being impartial. When I’m on the bench and judging each case based on the law and the facts before me. So, I think the. Ultimately, if the issue is, you know, what are we going to do about these commissions? And how can we make sure that they carry out their function properly in this state? I think the answer lies with the voters at the end of the day. And I would also just say, I think the bar, attorneys have such a huge role to play because if they are willing to, spread the word and help, with transparency, you know, like let people know what’s going on and stand up for the values of the profession that they are a part of. That they can really make a difference.

Kate Shaw Miriam, do you want to say anything about this kind of question of the relationship between elected judges? State level democracy, maybe these commissions, but but maybe feel free to speak more generally.

Miriam Cipher I’ll just add, you know, 38 states elect their judges in some fashion, whether initially or through retention elections. And there can be plenty of well publicized problems with the implementation of these systems as well as advantages. But it’s important to see that the elected judiciary is a distinctive choice that fits in with a broader commitment to democracy and state constitutions in their text and structure and history, and the way they design government. State constitutions have tended to prefer a system of self-determination and self-rule. In many ways, unlike the federal constitution, it really is a defining aspect of state constitutional design that they prioritize self-government by popular majorities on equal terms. Of course, states don’t always live up to this ideal, and the decision to go with elected state judiciaries, like other historical waves, was a multifaceted one. But it’s very much a part of this bigger picture in the states of a desire for rule by the people. And so, you know, it’s an institution, that needs to be sort of carefully protected, monitored, and overseen by the public. You know, who is part of its selection process?

Kate Shaw I should say Miriam has some great work on this idea, this democracy principle in state constitutions, a piece with Jessica Bowman Posen called The Democracy Principle in State Constitutions and other pieces elaborating that sort of core insight. So check that out if you have not. Justice Charles, you were elected in 2018, I think, to an eight year term. So that means you would be eligible to run again in 2026. Are you going to do that?

Anita Earls Yes, I’ve already provided my notice of candidacy. And, I you know, I hope that the voters will allow me to continue serving.

Kate Shaw Great. Before we go, let me just ask justice URLs. Are there any other big takeaways or messages for our listeners that you want to share with them?

Anita Earls I think just to to, emphasize that, being aware of these issues and being willing to speak up about them, really is important. And, and that the, the legal community has a really important role to play.

Kate Shaw Well, justice Anita Earls, Miriam Cipher professor at the University of Wisconsin-Madison. Thank you both so much for taking the time to join us today.

Anita Earls Oh. Thank you.

Miriam Cipher Yeah. Thank you so much.

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollock. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and thanks to our digital team, Phoebe Bradford and Joe Matuski. Subscribe to Strict Scrutiny on YouTube to catch full episodes, find us at youtube.com. Forward slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.