Protecting the Judiciary and the Rule of Law

On February 11, 2025, Duke’s Bolch Judicial Institute published a Letter from Paul W. Grimm Regarding Threats and Attacks on Judges.   Judge Grimm reported that a federal judge who issued a TRO to stop external access to Treasury Department databases “has quickly become a target of unfair, unwarranted threats and attacks lobbed via social media and news outlets across the country.”

Judge Grimm wrote that “we must immediately stand up and defend: judges who are doing their job to the best of their ability in quickly evolving situations, and the ability of the courts to fulfill their role to interpret and apply the law without fear or favor.”  His letter states:

The Bolch Judicial Institute will be working in the coming days to publicly share, via our website, media interviews, and social media campaigns, information that explains why these sorts of attacks are so dangerous and what judges, lawyers, and regular citizens can do to counter them. (I spoke today to the reporter of this Bloomberg article outlining some of the issues at play.) We strongly urge your organizations to do the same. Many of you are well-equipped to issue statements, draft and publish op-eds, speak to reporters, and use social media to defend the independence of the judiciary and to help people understand the seriousness of these challenges to the authority and role of the courts….  Right now, the tirade online against “activist judges” and “illegitimate courts” is mostly unanswered. We must be the ones to answer in defense of the judiciary. We must vigorously defend judges and the courts as they navigate unprecedented challenges to the separation of powers and the scope of the executive branch’s authority…. This is an all-hands-on-deck moment. [Emphasis in original].

I agree.  This is not the first time Judge Grimm has stated this concern. OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (Oct. 24, 2023).

In response, I have published multiple blogs echoing Judge Grimm:

• Protecting the Judiciary – E-Discovery LLC (Jan. 30, 2025);
• Maryland’s Protection of the Judiciary – E-Discovery LLC (Apr. 10, 2024);
• American Bar Association Statement on Threats Against the Judiciary – E-Discovery LLC (Apr. 8, 2024);
• Maryland Bills to Protect Judges and Their Children – E-Discovery LLC (Feb. 23, 2024);
• I Hear Crickets From the American Bar Association About Threats Against Colorado Justices – E-Discovery LLC (Jan. 27, 2024);
• Judge Paul Grimm: The Judiciary is Under Attack.  Lawyers Need to Defend It – E-Discovery LLC (Oct. 24, 2023); and,
• Threats Against the Colorado Supreme Court Must Be Called Out – E-Discovery LLC (Dec. 23, 2023).

It is good to see that the ABA condemns remarks questioning legitimacy of courts and judicial review (Feb. 11, 2025), writing:  “What is never acceptable is what was said by representatives of this administration, including the misleading assertion that judges cannot control the executive’s legitimate power and calls for impeachment of a judge who did not rule in the administration’s favor. It is also not acceptable to attack the judge making the ruling or try to interfere with the independence of the court.”

In response to the attacks, the ABA wrote:

These statements attack the legitimacy of judicial oversight just because a court’s ruling is not what the administration wants in a particular case. It is a fundamental cornerstone of our democracy that the courts are the protectors of the citizenry from government overreach. All lawyers know that judges have the authority to determine whether the administration’s actions are lawful and a legitimate exercise of executive branch authority. It is one of the oldest and most revered precedent in United States legal history — Marbury v. Madison. This is a key principle that is taught in the first year of law school.

These bold assertions, designed to intimidate judges by threatening removal if they do not rule the government’s way, cross the line. They create a risk to the physical security of judges and have no place in our society. There have also been suggestions that the executive branch should consider disobeying court orders. These statements threaten the very foundation of our constitutional system.

To the same effect, see ABA President William R. Bay, The ABA supports the rule of law (Feb. 10, 2025):

The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well….  There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.

The ABA concludes: “We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.”

I have been engaged in civil litigation since graduation in 1980.  I have lost cases that I thought I should have won, and vice-versa.  But, I always got a fair hearing.  And, there were always appellate courts to review the decisions.

Norman Rockwell said:

I suddenly remembered how Jim Edgerton had stood up at town meeting and said something that everybody disagreed with. But they let him have his say. No one shouted him down. My gosh, I thought, that’s it. There it is. Freedom of Speech.

“The nation’s founders created the judiciary as an independent, co-equal branch of government to ensure it is protected from outside political influences….  Often, the judiciary is called on to uphold limitations on the government. The judiciary protects against abuses by the other branches of government. It protects minorities of all types from the majority and protects the right of people who cannot protect themselves.”  Independent Judiciary Resources