As published in Bloomberg Law on February 25,2021
Everyone has a right to express opinions about a court decision. But after last year’s election, some went further and suggested that Wisconsin Supreme Court Judge Brian Hagedorn’s ruling in Trump’s lawsuit to invalidate ballots betrayed his party or his supporters. Rodney Acker, president of the American College of Trial Lawyers, says our democracy will be in peril if threats and harassment harm jurists’ duty and right to interpret law and facts and rule accordingly.
Democracy has (ultimately) prevailed. We can all count our blessings that we witnessed yet another peaceful transfer of power in our country on Inauguration Day. But in the weeks between the election and the Inauguration, we also witnessed an unprecedented assault on another pillar of our democracy—the judges and justices who preside over our courts.
The rule of law is an essential aspect of our democracy, as well as a key to our prosperity, security, and constitutional order. We cannot afford to ignore or take it lightly when the independence of the judiciary is threatened in pursuit of political gain.
After the election, a large number of lawsuits were filed contesting the results in both state and federal courts around the country. To the extent that people had reason to believe that violations of election laws had changed the outcome of the race, they had the absolute right to petition the courts for redress.
Those legal challenges were rejected consistently across the board. The justices and judges in those cases followed their sworn duty to interpret the law and facts as they saw them and rule accordingly. That is exactly what we rely on members of the judiciary to do.
Comments Against Ruling a Dangerous Misunderstanding of the Judiciary’s Role
Following an appeal that the Wisconsin Supreme Court rejected in a 4-3 vote, some expressed their view that the ruling in Trump v. Biden was incorrect. That is a statement of opinion and everyone, including government officials and politicians, have a right to express their opinion about a court decision. But others, including the incumbent president, went further and suggested that Judge Brian Hagedorn’s ruling somehow betrayed his party or his supporters.
These comments betray a dangerous misunderstanding of the role of the judiciary. Whether they are elected or appointed, judges’ and justices’ fidelity should be to the law, not to the interests of the parties or politicians that supported or appointed them. Support for a jurist’s appointment or election does not entitle anyone to special treatment or deference when standing before them as a party to a case. Until recently, this seemed a truth so self-evident as to not even be worth stating.
And yet in the wake of the Wisconsin ruling, the justices in the majority were attacked as “traitors and terrorists,” according to the Wisconsin State Bar. The statement from officers of the bar also alleged that “justices and judges are being threatened with acts of violence” for their role in these election cases. At least one member of the court was subjected to anti-Semitic attacks.
There is No Right to Threaten Safety of Judges, Families
The right of all Americans to dissent peacefully has always been at the heart of our shared sense of justice. But the right to dissent does not confer the right to threaten the safety of judges or their families (or anyone else for that matter) or to attack them for their religious beliefs.
Attacks and demands for loyalty threaten both the independence of the judiciary and the rule of law itself. Everyone, including politicians, who encourage or condone such attacks are complicit in these threats to our democracy.
The Framers of the Constitution understood how important judicial independence was. In their view, the English courts were too beholden to the crown. And so, they sought to create independence through lifetime appointments and the advice and consent of the Senate for seats on the federal bench.
Some of the states, including Wisconsin, instead elect their justices. But even where judges are elected, we have generally maintained a distinction between campaigning for, say, governor, and standing for election to the bench.
Thirteen states, including Wisconsin, hold appellate-court elections that are formally nonpartisan, which is one way to draw a distinction between the overtly political branches and the judiciary. But even where there is no such formal distinction, confidence in our system of laws and justice requires that jurists act out of fidelity to the law and not either person or party.
Again, we know that mortals are not angels—and that includes our jurists. As Ralph Waldo Emerson wrote, “Let me never fall into the vulgar mistake of dreaming that I am persecuted whenever I am contradicted.”
Like many great aphorisms, this one cuts both ways. Jurists should be subject to criticism—within the guardrails of our Republic. But they must be free from harassment, threats, or intimidation, just as all of us hope to be. Not every critique is persecution, and most of us know the difference when we see it, as we have since Nov. 3, 2020.
At the same time, it ought to go without saying that a jurist who rules against you is not out to get you. If we forget that, as some appear to have done in the wake of the election, our democracy really will be in peril.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Rodney Acker is the 71st president of the American College of Trial Lawyers.
Leslie C. Strickler