The Politics of Dissent

Over the past three years, Justice Anita Earls has issued one fiery dissent after another. 

One of the most scathing was in April, when the state’s highest court dismissed the latest installment of the long-running Leandro case, which challenged the state to provide sufficient funding for poor school districts. In deciding Hoke County Board of Education v. State of North Carolina, Earls felt the majority ignored clear constitutional violations of poor students’ rights to a sound, basic education, “denying any relief to injured parties.” 

“It is difficult to estimate the damage this Court has done to its own legitimacy by trying to rewrite a fundamental constitutional guarantee because it no longer comports with the Justices’ individual political preferences,” she wrote. 

Earls, 66, is the only Black woman on the court and one of just two Democrats, along with Justice Allison Riggs. She was first elected in November 2018 and is now running for her second eight-year term against former state Rep. Sarah Stevens, who served as House Speaker Pro Tem from 2017-2024 and chaired the House judiciary and election law committees. 

Democrats hope that if Earls wins this year, they will have a chance to take back the court’s majority in 2028 when three seats will be on the ballot. Most polls have Earls in the lead, and she has raised more than 10 times the funds that Stevens has—$4.4 million to $336,000. 

All of which makes the tone of Earls’ dissents, which have sharpened over the past three years, worthy of a closer look. She seems to have fully embraced her role as North Carolina’s version of the late U.S. Supreme Court Justice Ruth Bader Ginsburg, who became renowned among her supporters for her blistering critiques of decisions handed down by her conservative colleagues. Ginsburg made it clear she was writing for posterity; Earls appears to be doing the same. 

“What’s important to me is to remain grounded in the communities that I come from and the communities that I think of as most denied justice in our society in so many ways,” Earls told The 19th, a nonprofit news outlet, in 2023. “To remain grounded in that no matter how many times I have to write decisions that I’m the lone dissenter—no matter how many of those there are—that I don’t back down from what I believe in.”

In years past, justices on the state Supreme Court fought to maintain their impartiality and assure the public that the court’s decisions were based on the law, not the political winds of the moment. In that context, Earls’ outspokenness is unusual, and, lately, some of her critics feel she has overstepped. 

But Earls insists that party affiliation does not inform her outlook. “To me, it’s a question of whether the majority is correct in its reasoning or the outcome,” she told The Assembly. 

Former Democratic Justice Mike Morgan, who wrote several majority opinions from which Earls dissented, notes that she has always been an independent thinker. 

“Her approach was always to … emphasize precedent, to look at the totality of the case in terms of how it fits into the rule of law,” he said.

Making the Judgment Call

Earls’ first dissent came in the 2019 homicide case State v. Harvey, six months after she was first sworn in. At that time, Democrats held a 6-1 majority. 

In August 2015, Alphonzo Harvey stabbed Tobias Toler to death. Harvey claimed self-defense, alleging that Toler came at him with a pocketknife. The question before the court was whether the trial court judge should have instructed the jury on what the law says about self-defense. In a 5-1 ruling (Justice Mark Davis recused himself because he had ruled on the case as a North Carolina Court of Appeals judge), the majority ruled that the judge shouldn’t have included the jury instruction. Earls argued that Harvey’s defense presented enough evidence of self-defense to necessitate the judge’s instructions.

“I dissent because I believe the trial court and this Court are making the judgment call that should be made by the jury, the twelve men and women of Edgecombe County who heard the evidence and saw the witnesses testify at trial,” Earls wrote. “In so doing, the Court ignores controlling precedent and applies inconsistent standards to weigh the evidence.” 

That case arrived amid some shuffling among the justices, which triggered a cascade of political brinksmanship. A month after Earls joined, Chief Justice Mark Martin, a Republican, resigned to take a job as dean of Regent University School of Law in Virginia, which left Paul Newby, then an associate justice, as the court’s only conservative. Then-Gov. Roy Cooper picked Justice Cheri Beasley to become the first Black female chief justice in state history, passing over Newby, who had served on the court longer.

“Sadly, today, Gov. Cooper decided to place raw partisan politics over a nonpartisan judiciary by refusing to honor the time-tested tradition of naming the Senior Associate Justice as Chief Justice,” Newby said on X (then called Twitter). “The Governor’s decision further erodes public trust and confidence in a fair judiciary, free from partisan manipulation.”

Newby announced his intention to run against Beasley for the top position, which he later won by 401 votes. During a campaign event in Wake County that year, he compared his Democratic colleagues to U.S. Rep. Alexandria Ocasio-Cortez of New York, a self-described democratic socialist, and called the judiciary the “most dangerous branch of government.” He also singled out Earls, though not by name, pointing out the $1.5 million her campaign raised. 

“I lose sleep at night thinking, ‘What would it be like if we had no one to hold accountable those that want to cause social change through our judicial branch?’” Newby said, according to WRAL. “In 2018, the left put $1.5 million to get their ‘AOC’ person on the court.”

Even with a 6-1 majority, the Democratic justices did not always agree. According to an analysis done by the conservative publication Carolina Journal, Newby dissented the most (six times in 2019, 35 times in 2020). The next most likely to dissent was Earls, who matched Newby’s six dissents in 2019 and wrote 18 more the following year. 

As a veteran civil rights attorney, Earls counts activist and lawyer Pauli Murray among her heroes. She often dissented in cases where she argued that the majority didn’t properly apply the law or failed to consider all the facts of the case. Many times, she raised due-process concerns in both criminal and civil proceedings. 

One 2019 case involved a judge who denied a motion to dismiss a criminal charge against a teenage student accused of throwing a chair at school. Earls argued that the state’s evidence was insufficient. In several parental-rights termination cases, she felt the majority’s ruling didn’t reflect the facts or that the state denied the defendant due process. It wasn’t fair, she argued in one, for the state to determine that a father had abandoned his child when he was incarcerated and therefore unable to be an active parent. 

While those critiques reflected Earls’ willingness to challenge colleagues from her own party, their tone was generally muted and procedural.

That changed after the November 2022 election. 

‘An Institutional Earthquake’

By 2022, Republicans had already narrowed the court’s Democratic majority from 6-1 to 4-3. Phil Berger Jr. (Senate Leader Phil Berger Sr.’s son) and Tamara Barringer had joined the court in 2021. Then, in November 2022, Richard Dietz and Trey Allen won their elections, nudging the scale to the Republicans, 5-2. 

The Republicans didn’t waste time making their presence known. In a rare challenge to the court’s previous rulings, the majority voted to rehear two cases involving voter ID and partisan gerrymandering that the previous Democratic majority had already decided. 

Earls was livid, according to Billy Corriher, who interviewed Earls extensively for his book Justice for the People: The Anita Earls Story. She recalled learning of the decisions in an email from Berger Jr.

“This wasn’t a procedural quirk,” Corriher wrote, describing Earls’ reaction. “It was a rupture in long-standing judicial norms—an institutional earthquake.”

“The majority’s order fails to acknowledge the radical break with 205 years of history that the decision to rehear this case represents,” Earls wrote in her dissent over rehearing one of the two cases. “It has long been the practice of this Court to respect precedent and the principle that once the Court has ruled, that ruling will not be disturbed merely because of a change in the Court’s composition.”

Recently, the partisanship on the Court has become harder to ignore. Over a six-month period in 2022, nearly a third of the court’s 44 opinions were split by party, according to The Assembly’s analysis. 

The political conflict has also leaked outside the courtroom. In a 2023 interview with the legal publication Law360, Earls decried the lack of diversity within the judiciary and castigated Newby for not doing more to rectify it. “Their allegiance is to their ideology, not the institution,” she said of the Republican justices. She then criticized Newby for dismantling the Chief Justice’s Commission on Fairness and Equity, which Beasley had established in 2020 after George Floyd’s death. 

Her comments sparked a backlash and a wave of complaints from Republicans that Earls had overstepped the bounds of judicial impartiality, and the Judicial Standards Commission launched a formal investigation. Earls then filed a federal lawsuit against the commission, which she later dropped when it dismissed the complaints.   

And just last year, a six-month legal battle erupted after Jefferson Griffin, a Republican judge on the state Court of Appeals, challenged Democratic Justice Allison Riggs’ 734-vote election win. He sought to throw out thousands of ballots cast by people he claimed were ineligible to vote. That case also raised troubling questions about the impartiality of the state’s highest court. 

At times, Earls’ growing concern that her conservative colleagues are putting politics above the law (and Republicans say the same about her) has felt personal. 

In one case, the court split over whether to vacate a Court of Appeals decision involving a defamation suit against a TV station. Earls charged the conservative justices with “injecting yet more confusion, arbitrariness, and partisanship into North Carolina’s legal system.” 

Dietz responded: “One can reasonably disagree with our approach, but to claim that our decision comes ‘at the cost of the integrity of our justice system and our citizens’ faith in it’ is a bit unhinged.” He called her dissent “hyperbolic” and “exaggerated.”

In a recent interview with The Assembly, Mitch Kokai, senior analyst for the conservative John Locke Foundation, noted the rhetoric from both sides has gotten more heated in the last few years. 

“I don’t think it’s entirely Earls or the fact that we now have a Republican-led court,” he said. “I think it’s just more that you have some justices serving on the court now who are more inclined to write in a way that suggests passionate legal or political views rather than sticking to very dry, emotionless legal jargon and legal writing.” 

The Nail in the Coffin

On the campaign trail and social media this year, Earls has repeatedly said she believes judges must remain independent and impartial—that no one is above the law. She denies that party affiliation informs her jurisprudence. “If I disagree [with the majority], I feel it’s my obligation to explain my disagreement,” she told The Assembly. But she has not been shy about what she values, and what she will advocate for should she win re-election.

“My judicial philosophy would say that it’s the role of the state Supreme Court to hold the other two branches of government accountable to the state constitution,” she recently told progressive podcast host Brian Tyler Cohen when the two discussed the Leandro ruling. “Our court recently failed to do so with regard to another fundamental right. That’s the right to a sound, basic education.”

Earlier this year, Earls also spoke out forcefully against the U.S. Supreme Court decision in Louisiana v. Callais that gutted Section 2 of the Voting Rights Act, which prohibited racial discrimination in voting practices and procedures. 

“This was, in many ways, the final nail in the coffin, making it so difficult to prove vote dilution that the ability to draw districts to give Black voters the opportunity to elect their candidates of choice has all but been eliminated,” she told WUNC. 

In years past, justices veered away from offering public commentary on things such as U.S. Supreme Court rulings. That doesn’t appear to be true any longer. In December, Berger Jr. proposed loosening the rules requiring judges to restrict their political speech in public. 

In her Assembly interview, Earls did, however, acknowledge that her dissents have grown more pointed. She believes the Republican majority has bucked several long-held precedents. Though she feels some of her colleagues have singled her out for criticism (particularly Dietz, when he called one of her dissents “unhinged”), “I do not attack any of my colleagues,” she said. 

Those dynamics will undoubtedly inform this fall’s election. “Justice Anita Earls has made it plain through years of activism as an attorney and now as a Supreme Court justice that she wants to upend the Constitutional order of North Carolina,” Stevens, Earls’ campaign opponent, wrote in a statement (Stevens declined The Assembly’s interview request). “Instead of a restrained judiciary that provides a check to the other two branches of government, Justice Earls envisions a world where a far-left, extremist Supreme Court acts as a superlegislative body enacting soft-on-crime policies that put violent criminals like DeCarlos Brown Jr. back on the streets.” 

Earls told The Assembly in August that there’s a stark difference between her and Stevens. 

“My message is—my record is—one of standing up for people’s rights and in particular putting people over profits. And my opponent has been taking people’s rights away.”

Reporter Bryan Anderson contributed to this story.