Silence isn't strength when the courts are under attack

" It is not a time for people to be bystanders. I think people should think long and hard about what role they play [...] Everyone who cares about our constitutional republic needs to reflect on what they can do [about attacks on the judiciary.]"

- Judge Kimberly Mueller, senior judge of the United States District Court for the Eastern District of California

Judges are personally and directly attacked by elected and public officials, as well as others. They are the subject of sweeping, false generalizations done for political purposes; they and family members are doxxed (with the release of personal address and phone numbers), and some are killed. There are thundering denunciations in the media; threats of violence; threats of impeachment, and threats of election contests and recalls.

Many of the attacks are designed to undermine the independence of the judiciary, in that they seek to pressure courts towards a certain result.

The problem is not so much the nightmare visited on the judge and his or her family, although that should be enough to call out the attacker. A more basic problem is that the attacks are inflicted to stop the courts from following the law. Public officials either forget -- or fully intend -- that (as Chief Justice Roberts notes) "intemperance in their statements when it comes to judges may prompt dangerous reactions by others."

Those who truly support the rule of law support the courts -- also when they disagree with an outcome.

Given these attacks on the judiciary, one might wonder how judges respond.

Judges usually say nothing.

The root of judges' discomfort with public comment is found in Canons (formally, the California Code of Judicial Ethics), which bar "public comment about a pending or impending proceeding in any court." The courts can be anywhere in the world, and "impending" includes any matter which might get to a court -- and that covers the waterfront, including virtually all debates covered in the media. California's Committee on Judicial Ethics Opinions (CJEO) observes, "judges should examine whether their conduct promotes the public's confidence in judicial impartiality. A judge's online statements and social media posts are particularly likely to draw heightened attention when a judge is engaging in discourse on controversial subjects or current events." (Emphasis added.)

State judges can be disciplined, all the way up to removal, by the Commission on Judicial Performance for violating the Canons.

So, best say nothing. Some who hope to undermine the courts rely on this silence: They gamble there will be no rebuttal.

When judges do say something, it's thin gruel, decrying in the most general terms unspecified attacks. Presumably, it's left to the reader to connect the dots and imagine that the retort is aimed at something someone said or did in the vaguely recent past.

But how coy do judges have to be? 

Is it really true that the most pointed language we can use is, to quote Chief Justice Roberts, that "violence, intimidation, and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable"? How useful is it to hear, repeatedly and after every attack on a judge, that this sort of thing will not be "tolerated"? That the attack is "condemned"?

There certainly is a lot of that sort of generic condemnation from bar associations, other legal groups, individual judges and judges' organizations. "Judicial independence is worth preserving," they say; they condemn the suggestion of "political bias in the judge's adverse rulings without a credible basis for such allegations;" they say "threats and acts of violence directed at judges and their families are unacceptable and must be condemned unequivocally." 

But of course.

This abstract condemnation contrasts with a relatively recent emphasis in state appellate opinions on incivility. Lawyers who are uncivil, demeaning, patronizing, who make ad hominem attacks on opposing counsel -- and on judges -- are called out by name, and quoted, in published opinions. Their legacy is inscribed in the official reports forever (or as long as our media survives). E.g., Masimo Corp. v. The Vanderpool L. Firm, Inc., 101 Cal. App. 5th 902 (2024); Snoeck v. ExakTime Innovations, Inc., 96 Cal.App.5th 908 (2023).

Perhaps these developments are the result of a new appreciation of the Canons. Specifically, Canons 3B (3) and (4) require all judges to ensure that they -- and the lawyers before them -- are "patient, dignified, and courteous."  

By contrast, the public, out-of-court undermining of the rule of law doesn't require judges to do anything. So, what holds judges back from a direct, unambiguous response to "wholly unacceptable" threats and disinformation?

Judges' high caution may not always be warranted by the Canons, which focus on specific cases in (or about to be in) the courts. When it comes to the independence of the judicial branch, however, no specific case is necessarily involved, even if specific statements in the media are at stake.

The Canons support judges speaking out on "the law, the legal system, or the administration of justice." The Canons recognize, indeed, that judges are especially well placed, and so in a unique position to help improve the law and the courts. Nothing could be more foundationally essential in the administration of justice than to address, as specifically and directly as one possibly can, threats to our system of justice.

Just doing the job of a judge, and doing it with care, compassion and intelligence, just doing one's best to discern and follow the law, is hard enough. And it is enough, in that its example alone is a powerful retort to pressure tactics.

But some judges may wish to speak out, forcefully and directly, to address what Chief Justice Roberts named as the four aspects of unacceptable attacks: "(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments." Naming names, quoting threats, correcting specific disinformation, and explaining the possible consequences of defying a court order may all be proper. Surely, one need not simply decry an attack and hope a member of the public will glean the meaning.

So, I say. But my views on this are not worth much, and I suspect that most judges have a substantial doubt that they can, or should engage in this sort of exchange. The Canons are not clear, and no judge wants to be accused of engaging in partisan debates or prejudging an issue she might be called on to decide.

I think we want to encourage judges to speak out on these attacks, to explain the judicial system, to point out how pressure tactics, when played out, hurt every future litigant who expects a fair and neutral court; how, as Justice Roberts writes, every one of these acts undermines our Republic.

The California Supreme Court can edit the Canons. The state's Committee on Judicial Ethics Opinions can consider this, as well as the California's Judges Association, which both issues confidential ethical advice to judges and publishes opinions.

In the meantime, every judge has to decide, privately and in good conscience, what the Canons require, what they permit and what they bar. We will have different answers, but that doesn't mean any one of us must be wrong.