Bold action is needed to protect judges and the rule of law

At a July 31 conference, judges detailed violent threats they have received after handing down rulings against the Trump administration.

By Austin Sarat and Steve Kramer

Gatherings of state and federal judges are generally sleepy affairs. They often feature conversations about the latest developments in the rules of civil procedure, new ways of handling motions filed by litigants, or how to integrate new technologies into their work.

But last month’s online panel of judges from Mississippi, New Jersey, Pennsylvania, Rhode Island, and Washington was something quite different. The gathering, “Judges Break Their Silence: Attacks, Intimidation & Threats to Democracy,” was sponsored by a nonpartisan group called “Speak Up for Justice.”

Watched by thousands of viewers, judges went public, detailing violent threats they have received after handing down rulings against the Trump administration. Their accounts were chilling, the stuff of television drama, yet today they are part of the working life of judges in the United States and a threat to the rule of law.

Citizens and public officials need to pay close attention to what that panel of judges had to say. The hour is late, and the time for action is now.

We can start with Congress.

In June 2022, after an armed man was arrested near the home of U.S. Supreme Court Justice Brett Kavanaugh, Congress passed a law providing round-the-clock police protection for Supreme Court justices and their families. The Kavanaugh event was the calm before the storm.

Later that year, Congress enacted the Daniel Anderl Judicial Security and Privacy Act, which was designed “to make it harder for violent individuals to find judges’ addresses and other personal information online.”

But what the panel of judges said indicates that much more needs to be done.

For a start, Congress should pass the bipartisan “Countering Threats and Attacks on Our Judges Act” recently introduced by Sens. John Cornyn (R-Texas) and Chris Coons (D-Del.) and Reps. Michael McCaul (R-Texas) and Lucy McBath (D-Ga.). Their bill “establishes a State Judicial Threat Intelligence and Resource Center to provide technical assistance, training, and monitoring of threats for state and local judges and court personnel.”

In addition, Congress should reassign responsibility for protecting judges to the judicial branch from the executive branch. Currently, that work is done by the U.S. Marshals Service, which is housed in the Department of Justice and supervised by the attorney general and, through her, the president.

Ironically, the president himself has become a primary source of the problem such bills would address.

That is why federal judges now worry that he might withdraw protection if a judge rules against him. To deal with that possibility, Congress should transfer control to Chief Justice John G. Roberts Jr.

The urgency of these matters was made clear by the participants in the Speak Up for Justice event.

One, Rhode Island Federal District John J. McConnell Jr., talked about receiving serious death threats after he blocked the administration’s initial attempts to freeze federal funding. As the Boston Globe noted, six credible threats have been made on his life. McConnell also “shared audio of an expletive-laden voicemail calling for him to be assassinated and thrown in prison.”

He didn’t stop there.

McConnell told the audience that his daughter, who worked for the federal government at the time he ruled against the president’s freeze on federal funding, was attacked and doxed by Trump associates Laura Loomer and Elon Musk.

Another participant on the panel, Judge John Coughenour, who ruled against the president's executive order on birthright citizenship, recounted being “swatted” after making that decision. “The local Sheriff's Office received a call saying that I had murdered my wife and then arrived at my house with weapons drawn.”

Threats against judges are nothing new. But they are fast becoming the norm rather than the exception.

They are inspired by the president of the United States, who makes a regular practice of viciously attacking any judge who rules against him. He calls them “rogue judges,” “corrupt,” “unhinged,” “disasters,” and “radical left lunatics.”

On Memorial Day weekend, President Donald Trump took to Truth Social to denounce “USA HATING JUDGES WHO SUFFER FROM AN IDEOLOGY THAT IS SICK, AND VERY DANGEROUS FOR OUR COUNTRY.” He added that judges who ruled against his immigration policies were “MONSTERS WHO WANT OUR COUNTRY TO GO TO HELL.”

Emboldened by Trump’s tactics and rhetoric, members of the general public and his MAGA base feel that attacking judges is legitimate, and a generation of younger people continues to be exposed to hate mongering from the person who occupies the office that once was the most respected in the land.

For judges, this means that what used to be a prestigious yet cloistered, almost sleepy occupation has now become hazardous duty. As Maryland Chief Justice Matthew Fader put it, "While judges have always lived with a certain level of risk, we have never experienced risk on the scale that we currently see today."

The National Center for State Courts (NCSC) reported, “In 2021, individuals protected by the U.S. Marshals Service — including federal judges, prosecutors, and court officials — faced over 4,500 threats, a 400% increase since 2015.” And “In the last several years, state judges and court personnel in multiple states have been killed, attacked, and even subject to murder plots.”

Not surprisingly, all of this is taking a toll. A June 2024 survey of judges found that just over half of the respondents said “the public physical and verbal attacks on the judiciary, along with the recent drop in public trust and confidence in the courts, have negatively affected their mental health.”

Much more than the mental health of judges is at stake.

Americans rightly expect judges to be steadfast defenders of the rule of law and to make decisions without fear or favor. But it might be too much to expect them not to look over their shoulders or think about what could happen to them should they make a decision that some individual or group dislikes.

It would help prevent that from happening if the president would turn down the heat when he loses in court. But calls for civility will not do the job.

State legislatures and Congress must recognize the new world we are in and respond by enacting much-needed legislation and providing new resources to protect judges.

In his 2024 end-of-the-year report, Chief Justice Roberts wrote, “Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism.”

He rightly concluded, “(V)iolence, intimidation, and defiance directed at judges because of their work undermine our Republic and are wholly unacceptable.” It would be good if the president heeded Roberts’ warning, but we wouldn’t bet on it.

In the meantime, bold action is needed to respond to the cries for help coming from judges all over the country.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Steve Kramer is a lawyer and former assistant attorney general in Massachusetts.

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