By Kit Beyer, FTC law clerk

At recent panel (listen here) hosted by the National Constitution Center, federal judges met to discuss rising threats to the judicial branch. The participating judges were D.C. Circuit Judge Michelle Childs, Ninth Circuit Judge Margaret McKeown, S.D. Fla. Judge Beth Bloom and W.D. Mo. Judge Stephen Bough.

Their message was resoundingly clear: the American judiciary has come under immense pressure. Public support is essential to sustain judicial independence and, by extension, the rule of law.

“Since the foundation of the country,” Judge McKeown noted, “the legitimacy of the judiciary has rested on the trust of the public.”

History reminds us of what happens when judicial independence falters. Judges Bough and Childs both referenced the American founding, when colonists in the Declaration of Independence objected that King George III had “made Judges dependent on his will alone.” Judge Childs added that judges in Nazi Germany were required to pledge loyalty to the Führer. Judge Bough echoed this point. “First they come for the gays,” he said, alluding to a poem by Martin Niemöller, “then they come for the Jews, and then the gypsies and then maybe it’s the judiciary.”

America revolted against the king and went to war against the Nazis, choosing instead to erect a government in which judges follow the law, not the whims of an all-powerful ruler. Given what Judge McKeown described as “the rise of authoritarianism” and the “incremental erosion of democracies” abroad, the U.S. must remain faithful to the rule-of-law values that underlie our history — the recognition that fleeting partisan gains are subordinate to fundamental fairness.

Yet threats abound. Chief Justice Roberts identified four looming threats to the judiciary in his most recent year-end report: violence, intimidation, disinformation and defiance of lawful judgments. The panelists agreed with the Chief Justice’s assessment of the threat landscape. Judge Childs, for example, recalled how a stranger anonymously sent pizza to her home — a way to say “we know where you live.”

She also spoke about the murder of Daniel Anderl, the son of D. N.J. Judge Esther Salas, by a litigant who disagreed with her handling of his case. And Judge McKeown pointed out that one of the greatest efforts at intimidation “is this call to impeach judges because someone disagrees with their decision.”

“Judges are fair and neutral arbitrators of the law,” Judge Childs explained. “That’s our job. We need to be able to do so without fear or favor, without any bias, without any concern for political expediency.”

Threats to the judiciary thus undermine judges’ capacity to fulfill their constitutional role. Hence, members of the public, and especially the public officials they elect, have a duty to speak out and take action against such threats to a coordinate branch of government. For as Judge Bloom put it, an attack on judicial independence is “an attack on all of us.”

“They’re not our courthouse doors. They’re your courthouse doors. It’s the public’s courthouse,” she added. “So my hope is that it’s not just the judges that are speaking about this. It’s the public at large.”

Safeguarding judicial independence requires concerted and nonpartisan action, but the alternative is a darker America — one that the Founders would identify with the past they rejected, not the future they fought for.