NC Supreme Court justice proposes loosening political speech rules for judges
AI-generated summary reviewed by our newsroom.
- Justice Phil Berger Jr. proposed loosening North Carolina judicial political speech rules.
- Justice Anita Earls faced a 2023 investigation over public comments about diversity.
- Proposal would still ban spreading confidential information, speaking on merits of cases.
A justice on the North Carolina Supreme Court has proposed loosening the rules that require judges to restrict their political speech in public — rules intended to maintain the image of impartiality among the state’s judicial branch.
Phil Berger Jr., a Republican on the high court, suggested the reforms in an email to his fellow justices in December. That email, which was shared by a conservative think tank earlier this week, suggests that the state should not regulate any “constitutionally protected speech” made by judges or judicial candidates.
“This proposed amendment is not about expanding political activity by judges, but rather preserving the legitimacy of judicial regulation by having clear, objective, and enforceable rules,” Berger wrote. “My preference would be that judges and justices refrain from discussion of political issues. But as it stands, the subjective nature of policing political speech invites uneven enforcement and weaponization of the process.”
As it currently stands, the North Carolina Code of Judicial Conduct states in part that a judge should “conduct himself/herself at all times in a matter that promotes public confidence in the integrity and impartiality of the judiciary.”
The Judicial Standards Commission, which oversees ethics complaints against judges, investigated Democratic Justice Anita Earls in 2023 over accusations that she had broken that rule by speaking about diversity in the court system.
Earls, who is currently running for reelection, sued the commission over its investigation, claiming it violated her First Amendment rights. The commission later dropped the probe and Earls withdrew her lawsuit.
A spokesperson for Earls declined to comment for this story.
What would be banned
Under Berger’s proposed reforms, the state would adopt a new speech policy based on a 2002 U.S. Supreme Court ruling, in which justices found that a Minnesota ban on political speech by judicial candidates was unconstitutional.
Andy Jackson, an analyst who works with the conservative John Locke Foundation — which shared Berger’s letter — said the reforms would not only protect judges, but help inform voters.
“You want to be able to allow judicial candidates to communicate with voters, at least in broad principle, about what kind of judges they’re going to be,” he said.
The new policy, however, would still ban judges from speaking on confidential matters or the merits of a case pending in any court. Judges would also be banned from spreading “knowingly false statements concerning the qualifications or integrity” of other judges or candidates.
Changing the Code of Judicial Conduct is within the purview of the state Supreme Court.
Asked to explain the process for doing so, a spokesperson for the Administrative Office of the Courts pointed to a state law which holds that “The Supreme Court is authorized, by rule, to prescribe standards of judicial conduct for the guidance of all justices and judges of the General Court of Justice.”
Berger’s proposed reforms would not make any explicit changes to the rules surrounding political endorsements — an issue that has sometimes rankled North Carolina judicial candidates.
The Code of Judicial Conduct states that judges are allowed to endorse other political candidates if the sitting judge is a candidate themselves. They are explicitly prohibited from doing so if they are not running for office at the time of the endorsement.
However, some judges have skirted this ban by announcing a reelection campaign immediately upon their victory in the current election.
Berger himself endorsed a Republican candidate in the 2022 Supreme Court election, despite having just begun his eight-year term the previous year.
Following that endorsement, the then-executive director of the Judicial Standards Commission, Carolyn Dubay, issued a memo reiterating that judges were not permitted to endorse candidates if they were not actively up for reelection.
Shortly after that memo went out, Dubay abruptly resigned her position, and the memo was withdrawn.
