Even as U.S. politics became more contentious and polarized over the past quarter-century, certain areas of the government managed to maintain a level of impartiality. The courts and state capitols, in particular, strived to distance themselves from partisan politics. However, in recent years, these havens have been breached. The Supreme Court has become increasingly aligned with the Republican Party, and state legislatures are now ground zero for ideological battles. As a result, state courts, especially state supreme courts, have become the new battleground for bitter fights.
For example, in Wisconsin, Republicans in the legislature are considering impeaching Janet Protasiewicz, a liberal justice on the state supreme court, even before she has heard a case. It seems her crime is simply being elected as a vocal liberal. In North Carolina, Anita Earls, another liberal justice on the state supreme court, has sued the state’s Judicial Standards Commission over an investigation into innocuous comments she made about implicit racial bias.
These incidents are part of a larger trend of punishing judges for their rulings or their political leanings. In 2018, a Pennsylvania Republican unsuccessfully attempted to impeach four out of five Democrats on the state’s highest court. In 2022, Ohio Republicans wanted to impeach Maureen O’Connor, a Republican and former lieutenant governor who serves as the state supreme court’s chief justice, over redistricting rulings. Moreover, a bill in Montana seeks to make the state’s Judicial Standards Commission more partisan and give it greater power to impose consequences on judges.
According to Douglas Keith, a senior counsel at the Brennan Center for Justice, there appears to be a growing recognition that if you can’t win at the ballot box or change the method of selecting judges in your state, then leveraging judicial-ethics mechanisms may be another way to exert political pressure on judges.
One striking commonality among these cases is that Republicans are the driving force behind them. Both parties have contributed to the increasing partisan fervor in state courts. For example, I mentioned Protasiewicz’s campaign, which focused on progressive issues and received significant funding from out-of-state liberal groups, as a cautionary example of everything becoming political. However, GOP lawmakers are taking it a step further by attempting to punish their opponents outside of elections. The Brennan Center’s tracking of bills to undermine state courts reveals that all but one in the most recent survey were proposed in GOP-led states. Kentucky Republicans, for instance, passed a law this year allowing cases to be moved away from a court in the capital city, Frankfort, to bypass a single judge who frequently struck down their initiatives. In Arizona and Georgia, recent Republican administrations have also stacked their state supreme courts.
Both the Wisconsin and North Carolina cases fit this pattern but with unique wrinkles of their own. The Wisconsin case is a predictable political disaster—one that could have been foreseen from a mile away, yet no one seems capable of preventing it. Republicans had already floated the possibility of impeachment even before Protasiewicz’s election in April. Now, with gerrymandered majorities in both houses of the legislature, the GOP is on the verge of making it a reality. Notably absent from the discussion is a plausible justification for the impeachment—because they are still searching for one. They claimed her statements violated ethical guidelines, but the state’s judicial-ethics commission rejected that argument in a letter released by Protasiewicz. They accused her of prejudging cases that haven’t even come before her yet. They have even contemplated using her acceptance of donations from the state Democratic Party, despite the fact that all but one sitting justice has accepted such funds.
Regardless of whether Protasiewicz’s campaign approach was politically savvy, Republicans have failed to provide a credible rationale for removing her. This reveals the true reason behind their actions: a liberal supreme court poses an existential threat to conservative politics in the state. If the court were to invalidate the current maps, as expected, it would dismantle the gerrymandered GOP majority in the legislature. It could also relax restrictions on abortion. Impeachment of state-court judges is rare in the U.S.—historically reserved for cases of clear misconduct. Using it as a means to punish differences in political ideology would be a dangerous shift and undermine the court’s role as a check on the legislative and executive branches.
Robin Vos, the Republican speaker of the house, did not respond to a request for comment. If Protasiewicz were to be impeached, she would be suspended pending a senate trial, but Devin LeMahieu, the GOP leader in the senate, has stated that the body would not take up impeachment. This has led to speculation that Protasiewicz may be left in a state of limbo—unable to rule, yet neither convicted nor exonerated—and the court would be left with a 3–3 partisan deadlock, a blatant disregard for the voters’ wishes.
The situation in North Carolina is equally perplexing, although perhaps less sensational. To provide some context, battles over voting, including maps and election laws, have dominated North Carolina politics for the past 15 years since Republicans gained control of the legislature. Earls, an African American woman, spent years leading the Southern Coalition for Social Justice, a major legal opponent of Republican voting laws. In 2018, she was elected to the supreme court on a partisan ticket, the first time since 2004 that supreme court elections had become partisan due to a change implemented by the GOP-led government.
After the 2020 census, North Carolina Republicans enacted maps that were likely to deliver 10 out of 14 U.S. House seats to the GOP, despite the parties typically receiving similar percentages of the overall vote. The state supreme court, which was then controlled by Democrats, ruled these maps unconstitutional due to partisan gerrymandering in early 2022. Republicans subsequently regained control of the supreme court in the fall and overturned the ruling. (The legislature had also appealed to the U.S. Supreme Court under the so-called independent state legislature theory, but their argument was rejected by the justices.) The new Republican chief justice proceeded to overhaul many other court procedures as well.
Acrimony has engulfed the court as a result. While partisanship is the norm today, using ethics complaints as a partisan weapon is not. The state’s Judicial Standards Commission, chaired by a Republican judge and comprising judges from both parties, as well as attorneys, received an anonymous complaint accusing Earls of making improper comments about a case. After an investigation, the commission dismissed the complaint. However, in June, Earls granted an interview to Law360 where she discussed race and diversity in the courts. Subsequently, the commission informed her that it was reopening the investigation based on her comments, which allegedly suggest that her colleagues are motivated by racial, gender, and/or political bias when making decisions.
Curious to see what inflammatory remarks were made, I read the interview but came away baffled. In one passage, Earls simply stated that her newly elected colleagues “very much see themselves as a conservative bloc” and that their allegiance is to their ideology rather than the institution. In another, she mentioned the presence of implicit bias in a predominantly white and male group of lawyers who argue before the court. However, Earls clarified that she was not suggesting conscious, intentional racial animus. Yet, the commission decided to reopen the investigation based on these statements.
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