Amid the flurry of executive orders emanating from the White House in recent weeks, some individuals, organizations and states have filed legal challenges in the federal courts. And as the judges of those courts have sought to weigh the important legal implications of these challenges, some have granted temporary stays. This is not unusual. It is commonplace for Republican interests to mount legal challenges to the executive orders of Democratic presidents and vice versa.
It’s fair game to criticize the decisions of judges in the public square and through the appeals process. In fact, such criticism is a hallmark of a healthy democracy. What is not fair game — what serves as a body blow to our democratic republic and the rule of law — is to question the good faith of the judges or claim that they are driven by partisan considerations simply because one disagrees with their rulings.
Accusations that judges are “illegitimate” or “insurrectionists” or involved in a “coup” or should be “impeached” simply because they interpret the law in a way that you disfavor are dangerous to our democracy, not only because they grossly mischaracterize the work of the courts, but, more ominously, they undermine confidence in our judiciary, which poses a serious threat to the Constitution.
The renowned social psychologist Jonathan Haidt, someone not given to exaggerated claims, warns of a “catastrophic failure of our democracy,” because, he notes, “we just don’t know what a democracy looks like when you drain all trust out of the system.” Overheated rhetoric about the judges who are hearing challenges to President Donald Trump’s executive orders drains trust in our courts.
And the federal courts deserve our trust. In my 15 years on the U.S. Court of Appeals for the D.C. Circuit, I worked with colleagues appointed by Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama and Donald Trump, all trying their best to follow the law. To be sure, we disagreed from time to time — sometimes vigorously — but no one was trying to advance the cause of a political party or a politician. Each was trying their best to follow the law. I found that what Chief Justice John Roberts declared is in fact true: “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Retired Supreme Court Justice Stephen Breyer, who was appointed to the court by Clinton and found himself in the minority many times during his decades on the court, spent the last few years of his time on the bench and the years since explaining that judges are not “partisans in robes.” They are not driven by a desire to favor certain policy outcomes. They are driven by a commitment undertaken by oath to determine as best they can how the law requires a resolution of the dispute before them.
To be sure, the federal judiciary is made up of fallible humans, and on some occasions some of them may not live up to the pledge in their oath to be impartial. But in my experience, that is a rare occurrence and an exception to the way federal judges carry out their heavy responsibilities. And when it happens, there is a process in place by which other judges can correct that error.
Last year, I had the privilege of moderating a conversation between Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett. Even though they and their colleagues on the Supreme Court occasionally have deep disagreements over the meaning of the law and how it should apply in a given dispute, they both report that none of the justices doubts the good faith of the other justices. We should follow their example.
I was one of the few political conservatives that Biden appointed to a presidential commission he created in 2021 that was given the task to study and describe proposals from various quarters to change the Supreme Court. Throughout our deliberations, I heard many of my progressive colleagues decry the Roberts court as “illegitimate.” I pushed back against such claims because, in my view, they reflected nothing more than my colleagues’ disagreement with decisions of the court, and, even more troubling, they undermined public trust that we have an independent, nonpartisan judiciary.
Accusations that some judges are partisans — whether those accusations come from the left or the right — are not only dangerous for our democracy, but they give license to those disposed to visit physical harm or harassment upon judges and their families. Unfortunately, we’ve seen this in recent years with the attempted assassination of Justice Brett Kavanaugh and the death threats against judges who have ruled in a manner displeasing to some of Trump’s supporters.
The federal judiciary is wrestling with major and sometimes novel issues presented by the manner in which Trump seeks to carry out his agenda. I am confident that if we allow the time-tested process for resolving such disputes before an impartial judiciary to play out, the Constitution will hold firm. But accusations that a judge with whom we disagree is “illegitimate” or a mere “partisan in robes” pose a serious threat to the Constitution by doing precisely what Jonathan Haidt warned against. They drain public trust in our judiciary. The federal judiciary is by no means perfect, but it has proven itself over the years to be the crown jewel of our democratic republic and the greatest defender of the Constitution.
I fear for our Constitution if that trust disappears.