USA: Judges must be free to speak about racial and gender inequity, says UN expert

GENEVA (5 February 2024) – The United States must protect judges’ free speech, particularly their commentary on important issues threatening judicial independence or affecting the administration of justice, a UN expert said today.

The UN Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, expressed serious concerns that Justice Anita S. Earls, of the Supreme Court of North Carolina, was investigated for drawing attention to the potential role that implicit biases based on race, gender and political affiliation play in the decision-making of the Court.

“Like other citizens, judges are entitled to freedom of expression, provided they conduct themselves in a way that preserves the dignity of their office, and the impartiality and independence of the judiciary,” the expert said. “Judges should not face disciplinary investigations for speaking out on issues of vital public interest in a democratic society.”

In a June 2023 interview Justice Earls—the only African American woman Justice on North Carolina’s Supreme Court—expressed her opinion about the lack of racial and gender diversity among advocates arguing before the Court, the lack of racial diversity among judges’ clerks, and the impact of implicit bias on the justices’ treatment of advocates who are women and/or people of colour. She described being interrupted and receiving different treatment from her colleagues on the bench during public oral arguments and opined that this might be on account of her race, her gender, or her political views.

Justice Earls also discussed the decision to discontinue programmes aimed at increasing equity and tackling implicit bias within the North Carolina judicial system.

The North Carolina Judicial Standards Commission investigated Justice Earls, alleging that a judge should not publicly allege that another judge is making decisions based on an improper motivation, “without some quantum of definitive proof.”

“I have seen evidence that other justices on the North Carolina Supreme Court have publicly accused their colleagues of partisan conduct, but were not investigated by the Commission,” said the Special Rapporteur. “By singling out the speech of the only African American woman on North Carolina’s Supreme Court, the Commission’s actions raise the question of discrimination on the basis of race and gender.”

Satterthwaite also expressed concern that the Commission’s treatment may constitute reprisal for Justice Earls’ efforts to call attention to pressing issues of racial and gender discrimination and could have a chilling effect that inhibits others in the judiciary from sounding the alarm about issues of racial and gender bias.

Satterthwaite stressed that combating discrimination must be a priority for all actors in the justice system.

“To effectively play its role in defending equality for all under the rule of law, the judiciary should be diverse and representative,” the expert said. “By raising concerns about representation and bias in judicial systems, judges can help translate principles of equality before the law into reality. The right to make comments like these should be defended, and even encouraged.”

The expert: Ms. Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers. She was appointed as United Nations Special Rapporteur on the independence of judges and lawyers by the Human Rights Council in October 2022. Professor Satterthwaite is an international human rights scholar and practitioner with decades of experience in the field. She is a Professor of Clinical Law at New York University School of Law.

The Expert is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent of any government or organisation and serve in their individual capacity.

UN Human Rights, Country Page – United States of America