Defending the Judiciary

The Bolch Judicial Institute is leading a national effort to mobilize the legal profession to defend judges and the judiciary from a growing wave of unjust and unsubstantiated attacks that threaten judicial independence and diminish public faith in our judicial system. Along with a committee of bar leaders, the Institute will host a Defending the Judiciary Conference to discuss the challenges facing the judiciary and what bar leaders should do to address the problems. To learn more or to join the effort, email bolchjudicialinstitute@law.duke.edu.

Why do we need to defend the judiciary?

The strength of our democratic government depends on the public’s respect for and adherence to the rule of law. For that to occur, the public must have faith and confidence in all three branches of government, but especially for judges and the judiciary. That support has been eroding at a concerning rate in recent years. At the same time, we have seen an alarming increase in verbal and physical attacks on state and federal judges throughout the nation. According to recent reports, the United States Marshals’ Service documented 311 substantiated threats against federal judges in 2022 and over 280 such threats in just the first three months of 2023. This doesn’t include threats against state judges, which are not uniformly tracked.

Judges also are being subjected to vituperative, inaccurate, and intimidating verbal attacks by individuals who disagree with the rulings these judges have made. Some of these attacks are made by elected officials — on both sides of the political spectrum — who should know better. Judicial independence is critical to judges’ ability to issue judgments and opinions on which the rule of law depends. But physical attacks and verbal threats imperil that independence by intimidating judges and sowing broad distrust in the judiciary.

Judges are ethically prohibited from speaking about the cases assigned to them, and therefore they cannot speak out in their own defense. But bar associations can do something — and in fact are ethically obligated to do so. Comment 3 to Rule 8.2 of the ABA Model Rules of Professional Responsibility states that “[t]o maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”

Following are resources developed by bar associations to assist in the effort to defend judges and the judiciary. To get involved or to make your resources available here, email bolchjudicialinstitute@law.duke.edu.