Judges in the Cross-Hairs

Criticizing actions by public officials, including the decisions of judges, is an American tradition, and is protected by the First Amendment. But it is, of course, unacceptable for that criticism to cross over into threats, political retribution or even violence. Unfortunately, some extreme criticism does threaten to cross that line.

In one sense, the threat of violence is nothing new. After he wrote the majority opinion in Roe v. Wade, for example, U.S. Supreme Court Justice Harry Blackmun was the target of repeated death threats, and a bullet was fired into a room where Blackmun’s wife was sitting. More recently, in 2005, a judge came home to find her husband and her mother shot dead, apparently by someone angry about a case she decided.

In recent years, however, anti-judge rhetoric has heated up, against a backdrop of increasingly concrete threats to the safety of judges. The U.S. Marshal’s Service, which keeps track of “inappropriate communications, threats and assaults” against federal judicial officials, has seen a rise in such activity. From 1980 to 1993, the average annual number of such inappropriate communications, threats and assaults was 238. Now the average is 700, according to research done for the Utah State Bar Journal. The nation overall has seen a steady decline in violent crime over the same period of time.

In 2005, U.S. Supreme Court Justices Anthony Kennedy and Clarence Thomas asked Congress to increase the court’s budget so it could hire 11 more police officers — including one new officer assigned just to assess threats against justices. Also in 2005, the group in charge of running federal courts (the Judicial Conference of the United States) asked for an additional $12 million to install home-security systems at the homes of more than 800 federal judges.

In our government, judges and the court system they work in are the front line of protection for minorities of all stripes. They have a unique responsibility to enforce the Constitution without regard to popular sentiment. The only way they can do this is if they are independent, not owing allegiance to any political party or social group, not pressured to reach certain prescribed outcomes in the cases they decide.

That’s why federal judges have life tenure. And that’s why growing calls of punishment for “judicial activism” — even suggestions of violence against judges — are such a danger.

A Sampling of the Criticism and Danger Judges Face

Supreme Court Justices Ruth Bader Ginsburg and Sandra Day O’Connor. In February 2006, Ginsburg revealed that in 2005 she and O’Connor were the targets of an Internet death threat. The two were apparently targeted because they cited foreign law in decisions.

Judge John Coughlin. Colorado state Rep. Greg Brophy, R-Wray, launched an effort to impeach Coughlin in 2004 after his decision in a lesbian couple’s child custody case. The effort failed in a Colorado state House committee.

Judge Jeffrey Neary. Neary faced a storm of criticism after a ruling in 2003 that terminated a civil union between two women that had taken place earlier in Vermont. The controversy ignited a campaign to remove Neary from the bench in that year’s elections. The effort failed, with about 58 percent of the voters in the district approving his remaining on the bench for another six-year term.

“It hurts … that folks would do that to you. … This has become personal,” Neary told the Des Moines Register. The accusation that he was an activist hurt the most, the church sermon leader said. “This is not how I would treat my Christian brothers.”

Chief Justice Margaret Marshall. Article 8 Alliance, an organization opposed to marriage equality, called for the removal of Marshall, the Massachusetts Supreme Judicial Court’s chief justice, after she wrote the landmark opinion recognizing marriage equality in that state.

Multiple judges. Massachusetts state Rep. Emile Goguen, D- Fitchburg, presented a proposal to remove four of the Supreme Judicial Court judges who voted with the majority to recognize equal marriage rights in the 2003 Goodridge v. Department of Public Health case.

In Colorado, Will Perkins, chairman of Colorado for Family Values, vowed to impeach multiple justices on the state’s Supreme Court after it struck down Colorado’s discriminatory Amendment 2, which would have prohibited any local or state government from passing any sort of civil rights legislation that included protection for gay, lesbian, bisexual and transgender people.