It’s spring, and with their oral arguments for the term largely over (save one unusual added session set for Thursday), U.S. Supreme Court justices are taking to the lecture circuit. Topic A seems to be the unique challenges to the rule of law presented by President Donald Trump and his administration.
On May 1, just a day after the regular argument session, Justice Ketanji Brown Jackson told a federal judicial conference that “threats and harassment” aimed at judges “are attacks on our democracy.”
About a week later, Chief Justice John Roberts was more measured as he told an audience in Buffalo, New York, that the impeachment of federal judges, which some Republicans in Congress and in Trump’s administration (as well as the president himself in at least one instance) have urged, “is not how you register disagreement with a decision.”
And on May 8, Justice Sonia Sotomayor urged the legal profession to stiffen its resolve against attacks on the rule of law.
“We need trained and passionate and committed lawyers to fight this fight,” Sotomayor said at an event in Washington, D.C., for the American Bar Association’s Tort Trial and Insurance Practice Section.
The justices have generally steered away from mentioning Trump directly, but they aren’t hiding what is motivating their comments. Trump has regularly referred to judges as “left-wing,” “radical,” or “lunatic” (or some combination thereof). White House deputy chief of staff Stephen Miller has referred to judges who have ruled against the Trump administration as “Communist” or “Marxist.”
Some observers view the justices’ recent responses, even as they vary in the degree of alarm expressed, as emblematic of the cautious approach the Supreme Court appears to be taking to rhetorical attacks on the judiciary.
There is “a measure of incrementalism” in the three justices’ responses, says Aziz Z. Huq, a law professor at the University of Chicago who is a frequent commentator on the court and whose scholarship includes the study of “democratic backsliding” across the globe.
“It’s hard to know how coordinated this is,” Aziz says, adding that one would have to be inside the court to know whether any of the justices share views on a “public strategy” for addressing criticisms coming from Trump’s orbit.
Addressing judges, lawyers and the public
Jackson, in her remarks to the First Circuit judicial conference in Rio Grande, Puerto Rico, referred to “the elephant in the room: which is the relentless attacks and disregard and disparagement that judges around the country, and perhaps many of you, are now facing on a daily basis.”
Jackson said judges should continue to support civics education so citizens understand the role of the judiciary. And judges should “look inward” and support each other “in these challenging times,” she said.
“Especially for a single district judge, having to manage a high-profile, fast-moving, consequential case involving a challenge to government action is enormously difficult,” Jackson said. “When you add to that having to endure baseless attacks on your intelligence and integrity—coming from people who are not-so-subtly trying to influence your decision-making—it can sometimes take raw courage to remain steadfast in doing what the law requires.”
Sotomayor, alluding to Trump administration attacks on the ABA, told the TIPS session at the Smithsonian Institution’s National Museum of African American History & Culture that “for me, being here with you is an act of solidarity.”
Sotomayor, who received TIPS’ Lifetime Liberty Achievement Award, added, “With all the uncertainty that exists at this moment, this is our time to stand up and be heard.”
Roberts, in his May 7 conversation with U.S. District Judge Lawrence J. Vilardo before a public audience in Buffalo, spoke up for the independence of the judiciary. “In our Constitution, judges and the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law.”
Asked by Vilardo about calls for the impeachment of judges, Roberts offered his comment about impeachment not being the appropriate way to register disagreement with court rulings.
The chief justice also quickly noted that “I’ve already spoken to that,” a reference to his March 18 public statement after Trump had called for the impeachment of U.S. District Judge James E. Boasberg of Washington, D.C., after the judge blocked the deportation of Venezuelan migrants.
Within hours of the president’s comment, Roberts issued his statement that said, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
This week, speaking to students who will soon graduate from Georgetown University Law Center, Roberts was even more measured.
With regard to “strengthening the rule of law,” he told outgoing Dean William M. Treanor on Monday, “one area where it’s most in danger is with young people. … many people have really no understanding of what the role of courts are, what the different branches have to do, really even the notion of what law is, and what a constitution is.”
Criticism of the court is fine, Roberts said, “so long as it’s not, you know, trashing the justices” and it is directed at the “terms of the decision, really, and not ad hominem against the justices. I just think that doesn’t do any good.”
Code of Conduct for justices’ speaking engagements
Huq says the chief justice may be concerned that “a drumbeat of these comments … would undermine the appearance of impartiality.”
Jonathan H. Adler, a professor at Case Western Reserve University School of Law, says Roberts’ recent comments fit a pattern of his.
“I think that the chief justice has been both cautious in his remarks and consistent in his remarks going back years,” says Adler, citing both Roberts’ retort to Trump’s first-term comment about an “Obama judge” and the 2020 public remarks by then-U.S. Senate Majority Leader Charles Schumer (D-N.Y.) that two justices had “released the whirlwind” on abortion rights and “will pay the price.”
(Roberts said in 2018 we don’t have “Obama judges or Trump judges,” only “dedicated judges.” And in 2020, he called Schumer’s statement “threatening” and “dangerous.”)
“He has generally made his remarks fairly neutrally and consistently and … without regard for where the threats are coming from,” Adler says.
He was more critical of Sotomayor’s comments about her solidarity with the ABA and the need for the legal profession to step up.
Those comments were “less helpful” because “they come closer to raising questions about their appropriateness,” Adler says. “They’re not a defense of judicial independence.”
The justices’ own Code of Conduct, adopted in 2023, includes a section on speaking engagements, and says that except in unusual circumstances, no appearance of impropriety “will be created when a justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a nonpartisan scholarly or cultural group.”
Over the line, or not enough?
Eric J. Segall, a professor at Georgia State College of Law, says the only problem with the justices’ recent remarks is that they are “nowhere near enough” of a response to the threats to the rule of law posed by the Trump administration.
“We need these justices, who have life tenure, to speak up,” Segall says. “We just do. And they’re not. They’re probably afraid.”
The chief justice, Segall believes, remains in a state of surprise over the public’s generally negative reaction to last year’s decision in Trump v. United States, in which Roberts wrote for the opinion for the court that granted then-second term candidate Trump broad immunity for his official acts during his first term.
“John Roberts needs to come out and say, ‘Hey America, we’re in crisis here. Are you going to support the rule of law, or are you going to support lawlessness?’” Segall says. “I mean really, what are we doing?”
Huq says that his own research on democratic backsliding in such countries as Hungary, Venezuela and others convinces him “that it’s extremely hard for courts on their own to stand up to attacks from a determined executive branch.”
“Comparative experience suggests that judicial independence is actually quite a fragile achievement, and it depends upon restraint on the part of political actors,” Huq says. “When that restraint breaks down, it’s not a happy scenario that results.”