Defending the Judiciary: Why Attacks on Judges Threaten Democracy
We have witnessed a troubling pattern of executive branch criticism of the judiciary through the targeting of individual judges for making unfavorable rulings. Disagreement with court decisions is a normal part of democracy, but personal attacks on individual judges' integrity are crossing a risky boundary since it endangers the rule of law, public confidence in the judicial system, and the fundamental doctrine of separation of powers.
The Function of the Judiciary in a Constitutional Democracy
The judiciary is an independent branch of government and holds checks and balances over executive and legislative power. Judges are not politically aligned; judges decide the law impartially, bound by constitutional doctrine and stare decisis (judicial precedent). The independence of the judicial branch is a necessary safeguard required to guard against the authoritarianism the framers were escaping.
In ruling against them, the executive officials name individual judges, and this signifies disrespect for constitutional limitations.
The Chilling Effect on Judicial Independence
Judicial independence requires that judges should feel secure to interpret the law without reprisal, political pressure, or personal risk. Singling out a judge or group of judges for criticism on the grounds of an unpopular ruling not only damages reputation but also conveys a message that can resonate throughout the entire judiciary and jeopardize impartial and fair decisions in the future.
History is replete with examples of what is possible when judicial independence is compromised. Because the judiciary is typically the first institution to fall under executive control in authoritarian states, it can be a portal to unchecked power. It is no hyperbole to state that democracies that allow their leaders to attack judges with impunity risk similar outcomes.
The Role of the Public in Safeguarding the Rule of Law
The rule of law depends not only on institutions, but also on public support. When judges individually are criticized by elected officials, the public, lawyers, and media must push back. Adherence to court orders is essential to our constitutional democracy. If leaders can vilify judicial power with impunity, the courts are no longer a meaningful constraint on power.
Why Am I Writing This?
Lawyers are ethically bound to uphold judicial independence. The Model Rules of Professional Conduct confirm this commitment. Specifically, Comment 3 to Rule 8.2 states: “To secure the just and independent administration of justice, lawyers should continue traditional efforts to defend judges and courts unjustly criticized.”
This brings out the role of lawyers as custodians of the legal system. Lawyers are not just representatives of their clients; they are also officers of the court with an obligation to ensure the independence of the judiciary and that it is free from interference.
When judges are personally attacked by political leaders, lawyers must respond.
Historical Examples of Defending the Judiciary
I am reminded of two incidents in U.S. history when the judiciary was attacked—and how courageous defenders of our U.S. democracy were able to maintain its integrity successfully.
First, in the aftermath of the Supreme Court's landmark ruling in Marbury v. Madison, the newly elected Jeffersonian Republican majority in the House of Representatives sought vengeance against the judiciary. Seizing the opportunity presented by their landslide electoral victory that swept Thomas Jefferson into the White House, they impeached Supreme Court Justice Samuel Chase, a hardcore Federalist, basically because they did not agree with his Federalist-slanted judicial rulings.
When the impeachment trial took place in 1805, the Senate consisted of nine Federalists and 25 Republicans. Despite the political pressure, Justice Chase was acquitted of all the charges when some of the Republican senators broke ranks, refusing to convict. By doing this, they reaffirmed the principle that judges were not to be removed simply for rendering decisions that were unpopular with the ruling party, protecting the integrity of an independent judiciary.
The second example is from the late 1930s, when President Franklin D. Roosevelt attempted to raise the number of justices on the Supreme Court from nine to as many as 15. Frustrated by the Court's invalidation of key components of the New Deal, FDR proposed adding new justices who would be favorably inclined to his policies, effectively wiping out the then-existing conservative majority.
However, Roosevelt's own Democratic party fought back, viewing the plan as a power grab that was unconstitutional. Leading the battle to defeat the bill was Senator Henry Ashurst, the Democratic chairman of the Senate Judiciary Committee. His leadership, along with bipartisan resistance from members of both parties, successfully tabled the court-packing bill, preserving the integrity of the judicial process.
Conclusion
Judges should not be personally criticized for merely performing the exact thing they were appointed to do; interpret and remark on the law. The separation of powers is intended to ensure that no single branch of government can dominate the others. When executives criticize judges, they are criticizing the very foundation of an independent judiciary.
There can be no democracy without trust in its system of law, and we all have a duty to protect it. As lawyers, my colleagues and I have an additional obligation to defend the judiciary so that courts may remain impartial and independent dispensers of justice.
***Special thanks to Hon. Paul W. Grimm (retired) of the Bolch Judicial Institute at Duke Law for inspiring this writing.