Why Should We Care About Attacks on Judges?
The past year has been a difficult one for our democracy. It has been characterized by deep social division, hyper-partisan rhetoric, threats against public officials, and in some cases, deadly political violence. Whatever one’s personal beliefs may be, this is not an environment in which democratic values and institutions are likely to thrive.
One group of public officials that has faced an unprecedented number of threats is judges. Although the perpetrators of the threats for the most part are unknown, most of the judges who have received them have issued rulings—often technical or preliminary in nature—adverse to the current administration. The threats typically have been accompanied by extreme statements about the judges on social media and harassment not only of the judges themselves but also the judges’ family members and staff.
While few people have defended or attempted to justify this situation openly, it still is tempting to see it as just another indication of our polarized society. It’s fair to note that judges have faced threats at other times in our history, such as before the Civil War and during the civil rights era in the South. Judges of all philosophical viewpoints have been targets. Some have shown great courage, and some have lost their lives.
Minimizing the unique challenge of our current circumstances is shortsighted. At the most basic level, the judges and other people who are being targeted are suffering real hardship—living in fear for themselves, their family members, and their staff while trying to attend to their personal and professional responsibilities, and in some cases, making substantial changes to their daily routines to ensure their security. With the advent of social media, what might have been a local matter in the past has become known to very large audiences.
But there are other reasons why we should care about these attacks. One is the impact of this climate of fear on the way judges make decisions. While the effects may be subtle or even unconscious, judges who are assigned controversial cases are human, and the thought that one way of deciding a case is more likely than another to trigger a threat typically comes to mind somewhere along the way. Ethical canons obligate both state and federal judges to decide cases “without fear or favor,” but there is no way to measure with certainty the extent to which the prospect of being a target effects one’s thought process. We should care deeply, as did our nation’s founders, about efforts to intimidate judges.
Relatedly, these same dynamics discourage many talented, thoughtful, and public-minded people from aspiring to become judges at all. Why would one trade a successful professional career for one in which a random case assignment could change one’s life and put loved ones and coworkers at risk? The view of a judge as someone who avoids trouble by following faithfully the direction of those in power is a hallmark of an authoritarian society, not a democratic one.
This does not mean that judges or their decisions should be above criticism. An equally important aspect of democracy is the right to disagree, even passionately, with words and actions that one finds objectionable. But disagreement is not the same thing as making personal threats and engaging in harassment. If we have a reason to be in court, none of us wants to be before a judge who is motivated by fear rather than the law and the evidence presented.
None of this is to say that our justice system itself doesn’t face significant challenges. Our ability to realize our system’s fundamental aspirations—evidence-based decision making, a meaningful opportunity to be heard, and well-trained, ethical decision-makers—are affected by social inequality, inadequate resources, and less-than-optimal selection processes. We need to commit ourselves to do better.
