The Daily Dose: Dependent Judiciary
The end of judicial independence is upon us.
On Sunday, the Wall Street Journal reported that a group of federal judges has been discussing the possibility of establishing their own security force. The proposal would transfer control of the US Marshals Service, which traditionally performed that role, away from the Justice Department and put it directly under the authority of Chief Justice John Roberts.
Behind this decision lies a series of escalating threats against federal judges who have ruled against Donald Trump. Fueled by a near-constant barrage of incendiary rhetoric from the president, Attorney General Pam Bondi, Elon Musk, Fox News, and Republican lawmakers, Trump’s fascist foot-soldiers have taken to issuing threats of violence against judges during commercial breaks from Heartland Bowhunter.
Everything from swatting attacks (in which someone falsely reports a dangerous individual at a judge’s residence) to anonymous pizza deliveries (signifying the sender has knowledge of a judge’s home address), bomb threats, and calls for beheadings have become regular occurrences.
An institution which relies for its independence on the personal bravery of its officers is not independent at all.
In the past, judges experiencing threats to their personal safety would turn to the Marshals Service for help. But with the fox in charge of the henhouse, this option is no longer a reliable one. Nowadays, the Justice Department is more likely to incite such threats than protect the victims.
The fact that federal judges believe their personal security is at risk is obviously a five-alarm fire. At the same time, it signifies something larger: for all intents and purposes, America’s judiciary is no longer independent.
This is old news as far as the Supreme Court goes. By this late date, few observers, at least those not high on hopium, would expect the Roberts majority to rein in Trump’s authoritarian excesses. Since he took office, however, plenty of federal judges, including ones nominated by Trump himself, have displayed an admirable willingness to defy him.
But for a federal judge to do so at this point requires a readiness to contravene every incentive they otherwise face. An institution which relies for its independence on the personal bravery of its officers is not independent at all.
This underscores a point I have made in the past: Now that America has transitioned to authoritarianism, the rule of law as we knew it is dead. The only thing that can bring it back is massive, non-violent civil resistance. The independence of the judiciary, not to mention self-government itself and the panoply of rights vested in us by the Constitution, can only be saved to the extent that we ourselves defend it.