The treatment of Georgia District Attorney Fani Willis and North Carolina Justice Anita Earls highlight a power struggle over state and district courts.
Across the country, public officials are engaging in a power struggle over state and district courts as some lawmakers push legislation to limit court officials’ power and use state disciplinary boards against judges and lawyers who threaten their political agenda.
Two high-profile examples of these tactics are currently unfolding in North Carolina and Georgia.
On August 29, North Carolina Supreme Court Justice Anita Earls sued the state’s judicial oversight commission, alleging the board is violating her First Amendment rights by investigating comments she made about judicial diversity.
In Georgia, legislators passed a law establishing an oversight commission that can be used to remove prosecutors from office. One Republican lawmaker in Georgia has already pointed to the commission as a way to investigate Fulton County District Attorney Fani Willis, the woman at the center of the Georgia criminal case against former President Donald Trump.
Legal advocates supporting Earls and Willis told The 19th it is notable that both are Black women who have drawn criticism from their states’ Republican-led legislatures. In many cases, advocates said, Republicans focus their grievances on elected officials who are women or people of color, who disproportionately face marginalization and harassment.
“I think it’s part of a national trend that we’ve seen throughout the Trump era where partisan officials, particularly those in gerrymandered legislatures who are often majority White and male, are not just trying to win power, but trying to rig the rules of the game to entrench their power and punish anyone who disagrees,” said Jill Habig, founder and president of Public Rights Project, a legal nonprofit representing four prosecutors suing over the new law.
The Public Rights Project and Local Solutions Support Center found 37 proposed bills or judicial or executive actions from 2017 to 2023 that would suppress the authority of or punish liberal prosecutors. State legislators are proposing even more ways to impact the courts: In 2022 state legislators introduced at least 74 bills across 25 states seeking to politicize or undermine the independence of state courts, according to a December report by the Brennan Center for Justice. This includes measures that allow the state to override court decisions or limit judges’ ability to enforce court decisions. Most of the efforts cataloged in both reports failed to become law, but they highlight the scope of a broader strategy.
North Carolina is one state where conservative legislators have made changes to some court procedures, including requiring judges running for office to declare a political party affiliation.
“You have a branch of government that’s out of control, that’s just consistently power grabbing,” said Melissa Price Kromm, director of the North Carolina Voters for Clean Elections, which advocates for transparency and fairness in voting and judicial processes. “It doesn’t believe in the co-equal branches of government and separation of powers and checks and balances. We’re very alarmed by this here in North Carolina.”
Just before Earls launched her campaign for a North Carolina Supreme Court seat in the fall of 2017, state Republican lawmakers voted to cancel the 2018 judicial primaries, a move Democrats said favored the incumbent Republican candidate over Democratic challengers like Earls.
Despite the procedural change, Earls won the election and took office in 2019, when legal battles over voting rights were front and center for the state. As major redistricting cases progressed through the courts, GOP lawmakers repeatedly called for Earls to recuse herself because she had received campaign donations from a Democratic redistricting group and had once led a legal advocacy organization that challenged Republican legislation.
In April of this year, the conservative-majority North Carolina Supreme Court issued a ruling in favor of Republicans, paving the way for the Republican-controlled legislature to redraw voting districts to give their candidates a political advantage in the 2024 elections. That ruling overturned a decision made in 2022, when Democrats held a majority on the court.
Earls wrote a scatching dissent, calling the decision one of the court’s “darkest moments.” Weeks before, Earls had spoken with The 19th about her commitment to speaking out and not backing away from dissenting to majority rulings.
That same month, Earls’ conflict with the North Carolina Judicial Standards Commission began. Fourteen members make up the commission, with more than half of them appointed by the state’s conservative chief justice and Republican-led General Assembly.
On March 20, the commission notified Earls that it would launch a formal investigation in response to an anonymous complaint filed against her. A copy of the commission’s notification letter to Earls stated allegations that she disclosed confidential information at two public events and with a newspaper reporter concerning matters being considered by the state Supreme Court.
This commission voted to dismiss the complaint May 12 and gave her a reminder to be cautious with her public comments. But a second anonymous complaint was filed after Earls gave an interview in June to the legal news publication Law360, and the commission reopened its formal probe. In the interview, Earls discussed the North Carolina judiciary’s diversity record and efforts to make judicial positions more accessible to underrepresented race and gender groups. She also commented on the chief justice’s decision to end implicit bias training for judges.
The second commission notification letter to Earls stated that her comments potentially violated the state code of judicial conduct, which requires a judge to behave “at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.”
In response to an email from The 19th, the commission said it is “a non-partisan investigative body comprised of members appointed by the Chief Justice, Governor, General Assembly, and State Bar Council. The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”
Most complaints to the North Carolina Judicial Standards Commission are dismissed before reaching a formal investigation. Of the 560 matters evaluated by the commission in 2022, zero were reopened cases, and 79 percent were dismissed without a formal investigation, according to the commission’s annual report.
Earls’ lawsuit against the commission asserts that the multiple investigations and threats of disciplinary action have chilled her free speech and affected her ability to do her work as a justice.
Dawn Blagrove, an attorney and executive director of the nonprofit Emancipate NC that fights against racialized mass incarceration, told The 19th that the ongoing scrutiny of Earls reflects a broader judicial system “that is hostile toward Black women.” It also sends a message to Black communities, she said.
“The message that they’re sending is that North Carolina is a state where Black people, Black women need to be quiet, they should not speak up on the harms that face our communities, they should not talk about systemic and institutional racism that exists in every system all across this country, but specifically here in North Carolina,” Blagrove said.
Across the country, women elected officials, particularly those of color and Black women officials, encounter criticism or threats of violence for weighing in on political fraught topics from Trump to racial inequity.
Earlier this year Wisconsin Supreme Court Justice Jill Karofsky revealed to the Associated Press that she was scolded by the state’s judicial oversight commission in response to a complaint filed against her for commenting that a 2020 lawsuit initiated by Trump had racist motivations. Trump’s suit challenged Wisconsin’s election results in the state’s most diverse counties.
Reform-minded prosecutors and prosecutors of color are also under a microscope. Black women prosecutors have spoken publicly in recent years about the hostility they deal with from members of the public and government leaders.
Florida Gov. Ron DeSantis has removed two state prosecutors, one last year and another in August, accusing them of being too easy on crime. Most recently he suspended State Attorney Monique Worrell, a Democrat and the only Black woman elected as a state attorney in Florida. Worrell sued to challenge DeSantis’ decision on Wednesday.
Nearby in Georgia, Willis has received backlash as a Black woman leading one of the high-profile criminal investigations into Trump. In the days leading up to and following Trump’s August 14 racketeering indictment in Georgia, derogatory comments about Willis’ race and appearance were published to Trump’s social media website, Truth Social.
“Fani Willis Just another ghetto gang-banging HO who uses her position like a gang leader wields his gun,” one person wrote on Truth Social.
“That smug arrogant look is about to be slapped off that face of hers when this stuff goes to trial,” another person wrote, adding that Willis “will soon be burned and thrown out with the rest of the trash. Be patient.”
Back in May, Republican Georgia Gov. Brian Kemp signed a bill into law creating a commission with the power to discipline and remove “far-left prosecutors,” he said. Republican Georgia Sen. Clint Dixon noted that the commission can be used against Willis when it begins work in October.
Represented by the Public Rights Project, four Georgia prosecutors, not including Willis, sued the commissioners of the new Prosecuting Attorneys Qualifications Commission in August seeking to overturn the new law. They also requested an injunction to stop the oversight commission from beginning work until a court decision could be reached about the law.
Their suit asserts that the policy and new commission will restrict free speech and violates due process rights. Speaking with The 19th, Habig of the Public Rights Project said there has already been a chilling effect among prosecutors in the state. She cited affidavits submitted by district attorneys who confirmed that the law is influencing how they approach their work.
For Black women in particular, the disproportionate retaliation takes a toll, prompting a number of them to retreat from public life and have shorter tenures in office, said Habig, who served as deputy campaign manager and policy director for Vice President Kamala Harris when she was a U.S. senator.
Habig’s team is waiting for the court to set a hearing date for the Georgia lawsuit. Four weeks after the Public Rights Project sued, Kemp publicly pushed back against Republican efforts to go after Willis.
“The bottom line is that in the state of Georgia, as long as I’m governor, we’re going to follow the law and the Constitution, regardless of who it helps or harms politically,” Kemp said. Dixon’s office did not respond to a request from The 19th for a comment on the governor’s statement.
Habig said Kemp’s statement is encouraging, but does not change the root issue. “In helping to create this commission and by signing this law, he’s kind of opened up Pandora’s box where this commission can be used for exactly the partisan retaliation purposes he now says he opposes. He doesn’t have full control over the commission,” she said.
Originally published by The 19th