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Where’s the Line When Criticizing Judges?

Judges aren’t above reproach, but some kinds of attacks can undermine the judicial system.

Credit: Atit Phetmuangtong/Getty

On Wednes­day, Senate Minor­ity Leader Charles Schu­mer (D-NY) came under fire for target­ing Justices Brett Kavanaugh and Neil Gorsuch when speak­ing at a pro-choice rally in front of the Supreme Court. He later walked back his state­ment, but the epis­ode, along with recent attacks on judges by Pres­id­ent Trump, raise the thorny ques­tion of when and how public figures should criti­cize judges and their decisions.

In Schu­mer’s case, he used language that seemed to prom­ise retali­ation for ruling against abor­tion rights in an upcom­ing case: “I want to tell you Gorsuch, I want to tell you Kavanaugh — you have released the whirl­wind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

On Thursday, he said that he miss­poke, saying, “I should­n’t have used the words I did, but in no way was I making a threat. I never — never — would do such a thing.”

For Trump’s part, last week on Twit­ter he accused Justices Sonia Soto­mayor and Ruth Bader Gins­burg of bias and said that they should­n’t be able to hear any cases in which he is involved. This was on the heels of his target­ing the judge presid­ing over the prosec­u­tion of Trump friend and adviser Roger Stone, who was sentenced to over three years for lying to Congress, witness tamper­ing, and other crimes. It’s unfor­tu­nately part of a regu­lar pattern of attacks on judges by the pres­id­ent (we keep track of them here).

Schu­mer was right to disavow his words and Trump should do the same. At the same time, judges are not above critique or public pres­sure. Indeed, here at the Bren­nan Center, we regu­larly disagree with judi­cial rulings and call out reas­on­ing that does­n’t stand up to scru­tiny.

But there are compet­ing values at play when criti­ciz­ing judges. Certain kinds of attacks can under­mine the public legit­im­acy of the courts or threaten judi­cial inde­pend­ence — both lynch­pins in our system of govern­ment.

That’s why elec­ted lead­ers should­n’t make unsup­por­ted claims of bias or attack a judge’s personal integ­rity simply because they disagree with a ruling. And while judi­cial rulings should always be fair game for criti­cism, it’s import­ant that our lead­ers also affirm that they will abide by a court’s decision.

It can be harder to draw the line about what kind of pres­sure is appro­pri­ate in trying to influ­ence a judge’s decision in an ongo­ing case. It’s reas­on­able to expect judges to have thick skin, includ­ing accept­ing public protests and comment­ary when they’re decid­ing cases of public import­ance. But more extreme forms of bully­ing, like threat­en­ing impeach­ment or personal retali­ation for a judi­cial ruling, go too far. Public offi­cials should also show extra care when speak­ing about crim­inal cases, where outside pres­sure can threaten due process rights.

The speaker matters as well. Inflam­mat­ory state­ments by elec­ted offi­cials can do more to damage the system’s legit­im­acy because they are part of the system them­selves. Such state­ments can also incite some to act outside the system, putting judges’ secur­ity at risk.

Another import­ant ques­tion is how members of the judi­ciary should respond to attacks. Follow­ing Schu­mer’s remarks, Chief Justice John Roberts issued a rare public rebuke, saying that “Justices know that criti­cisms comes with the territ­ory, but threat­en­ing state­ments of this sort from the highest levels of govern­ment are not only inap­pro­pri­ate, they are danger­ous.”

As the leader of the federal courts, it’s appro­pri­ate for the chief justice to play a visible role in defend­ing its integ­rity. But Roberts’ state­ment also raised ques­tions about why he chose to respond to Schu­mer and not Trump. This kind of select­ive response risks exacer­bat­ing public percep­tions of partisan bias on the Supreme Court.

Over the next four months, the Court is set to rule on a host of high-profile cases — and to attract criti­cism and even vitriol for its decisions. That’s demo­cracy. But not all criti­cism looks alike, and public offi­cials should be care­ful about where to draw the line.