LIVE: Lawyers and Fmr. Judges STRIKE BACK as Trump Threatens Courts

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Quick Read

Former federal and state judges, alongside leading lawyers, unite to defend the independent judiciary and the rule of law against unprecedented political attacks and the erosion of public trust.
Political rhetoric from high-level officials is actively delegitimizing judges and fostering an environment of threats.
The judiciary acts as a crucial "great leveler," ensuring equal access to justice for all, regardless of wealth or power.
Civic education is vital to help citizens understand and protect the foundational role of an independent judiciary.

Summary

The podcast features a panel of former federal and state chief justices and judges, organized by "Speak Up for Justice," discussing the critical threats to the American judiciary. They highlight how political rhetoric, particularly from high-level government officials, is undermining judicial independence, leading to increased threats against judges, and eroding public confidence in the justice system. The discussion emphasizes the judiciary's role as a "great leveler" ensuring equal access to justice, the importance of state courts, and the need for civic education to protect democratic institutions. Speakers express concern over the delegitimization of judges, the impact of presidential actions like pardons for January 6th defendants, and the increasing use of the Supreme Court's "shadow docket." Despite the alarming trends, they convey hope through active civic participation and the resilience of American citizens in upholding the rule of law.
The integrity and independence of the judiciary are foundational to American democracy and affect every citizen, from major corporations to individuals facing traffic tickets. The current political climate, characterized by direct attacks on judges and the justice system, threatens the impartial application of law, predictability for businesses, and the safety of judicial officers, potentially leading to a breakdown of democratic guardrails.

Takeaways

  • Judges are currently under unprecedented attack from the highest levels of government, leading to unfair criticism and maligning of their work.
  • Retired judges play a critical role in defending the judiciary because sitting judges face constraints that can make their public defense appear political.
  • The vast majority (95%) of cases in the U.S. are handled in state courts, underscoring the importance of independent state judiciaries for everyday citizens.
  • Attacks on the judiciary undermine predictability and stability, which are essential for corporations and the broader economy.
  • Labeling judges as political operatives is highly damaging to their credibility and the public's trust in impartial justice.
  • Political rhetoric has escalated threats and physical violence against judges and their families, creating a perilous environment for judicial officers.
  • The Supreme Court's "shadow docket" is being overused, leading to major decisions without full briefing or argument, and leaving lower courts without clear guidance.
  • A lack of civics education contributes to public misunderstanding and vulnerability to misinformation about the government's three branches.

Insights

1Unprecedented Attacks on Judicial Independence

Judges across federal and state systems are facing direct, high-level criticism and attacks, leading to an erosion of public trust and creating a dangerous environment. This includes being unfairly maligned, called "criminals," and subjected to threats.

Judge Donald states, "Judges are under attack in this country as never before. People from the highest level of governments have criticized judges, criticized judges work, unfairly maligned judges." Paul Keel also references a clip where a president calls judges "criminals."

2The Judiciary as the "Great Leveler"

The independent judiciary ensures that no individual, regardless of wealth, position, or political affiliation, is above the law, providing equal access and impartial justice for all citizens and corporations.

Judge Jones explains, "the third branch is the great leveler, and and gives everyone properly functioning the equal access to a system that is designed to not operate with fear or favor in any way." Justice O'Connor adds that 95% of cases are in state courts, where individuals want an independent judge.

3Erosion of Trust and Safety Due to Political Rhetoric

The constant vilification and marginalization of judges by political figures lead to a dangerous erosion of public confidence and an increase in physical threats against judicial officers and their families. This rhetoric can incite individuals to violence, believing they are acting on behalf of a political cause.

Justice Sakakawi recounts receiving "extreme violent threats" after speaking out against a federal action in 2017, including detailed threats of how she would be killed. Judge Jones notes that rhetoric can "play to that fringe who believe they're doing the work of a benefactor when they strike out."

4Concerns Over the Supreme Court's "Shadow Docket"

The increasing use of the Supreme Court's emergency docket, or "shadow docket," for major decisions without full briefing or argument, is problematic. It shapes jurisprudence without adequate deliberation and leaves lower courts without necessary guidance, creating legal uncertainty.

Judge Donald describes the shadow docket as a "streamline procedure where you don't have the benefit of full briefing and the argument," leading to decisions on "really major things" that leave lower courts without guidance. Judge Jones calls it "maddening" for district judges who must "read the tea leaves."

5The Critical Role of Civics Education

A significant gap in civics education leaves many citizens unaware of the fundamental structure and functions of government, particularly the independent role of the judiciary. This lack of understanding makes the public more susceptible to misinformation and less equipped to defend democratic institutions.

Justice O'Connor states, "our education system undereducates our children... when it comes to civics and how governments work." Justice Sakakawi adds that "people do not understand the three branches of government" and the judiciary's vital check and balance role.

Lessons

  • Actively participate in civic life and support organizations like "Speak Up for Justice," "Article 3 Coalition," and "Alliance of Former Chief Justices" that advocate for judicial independence and the rule of law.
  • Educate yourself and others about the structure and function of the American government, particularly the independent role of the judiciary, to counter misinformation and strengthen democratic understanding.
  • Recognize and challenge rhetoric that delegitimizes judges or the justice system, understanding its potential to erode public trust and incite violence.

Notable Moments

Paul Keel references the movie "Nuremberg" and the question, "Do you know why it happened in Germany?" with the answer, "People let it happen because they didn't speak up before it was too late."

This analogy frames the current threats to the judiciary as a critical historical moment requiring active public defense, drawing a parallel to the dangers of inaction in the face of authoritarianism.

King Charles III addresses the U.S. Congress, citing Magna Carta as the foundation for executive power being subject to checks and balances, receiving a standing ovation from both Speaker Mike Johnson and the Vice President.

This moment highlights the irony of American political leaders applauding a foreign monarch for a principle (checks and balances) that some are perceived to be undermining domestically, underscoring the current political tension around executive power.

Quotes

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"Our system is under pressure right now unlike anything we have seen in those 250 years."

Paul Keel
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"The cornerstone of this democracy is an independent judiciary that applies the law to the facts without regard to the person, the position, the ideology or anything of that nature."

Judge Bernice Donald
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"The coin of the realm for the judiciary is trust, integrity, and that we operate without bias. That we take to heart equal protection. We take to heart due process. And the courts are a place where everyone has an opportunity at justice."

Judge Bernice Donald
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"If you take away the credibility of of judges, if you so vilify them that they're they're held up to public scorn, then there is less respect for the decisions."

Judge John Jones
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"We get death threats on the norm. We get them every now and then. We get stalkers... But the minute I spoke out in 2017 about a practice by the federal government, the escalation of extreme violent threats against me exploded."

Justice Tani Cantil-Sakauye
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"The arc of the moral universe is long, but it bends toward justice... it doesn't bend of its own volition. It bends because men and women, boys and girls of courage, of vision, and of commitment put their hands firmly to that arc and they push it and they pull it in the direction of justice."

Judge Bernice Donald

Q&A

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