The Fragile Foundation: Preserving Judicial Independence in Times of Challenge
As members of the judiciary and the legal profession, we must stand firm in defense of our constitutional principles.
In recent months, we have witnessed unprecedented challenges to the independence of the judiciary and the legal profession in the United States. As a sitting judge, I feel compelled to address these developments not through a political lens, but through the constitutional principles that have guided our nation for nearly 250 years. The recent rhetoric and actions targeting judges, lawyers, and law firms represent a profound threat to the rule of law that transcends partisan boundaries.
The Constitutional Framework of Judicial Independence
Our constitutional system was deliberately designed with three co-equal branches of government, each serving as a check on the others. As Alexander Hamilton articulated in Federalist No. 78, the judiciary is the "least dangerous branch" because it has "no influence over either the sword or the purse."[^1] Unlike the executive and legislative branches, the courts possess neither the power to enforce their rulings directly nor control over government funding. Their authority rests solely on public confidence in their legitimacy and the willingness of the other branches to respect their decisions.
The framers understood that without an independent judiciary, the Constitution's protections would be mere words on parchment. A judiciary subject to intimidation or retaliation for its rulings cannot fulfill its constitutional duty to interpret the law without fear or favor.
Recent Challenges to Judicial Independence
Recent events paint a troubling picture. We have seen high-ranking government officials call for the impeachment of judges simply because they issued rulings the officials disagreed with.[^2] Chief Justice John Roberts took the extraordinary step of issuing a public statement reminding the nation that "For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision." Instead, he noted, "The normal appellate review process exists for that purpose."[^3]
The American Bar Association condemned "remarks of high-ranking officials of the administration that appear to question the legitimacy of judicial review and demand impeachment of a judge merely because the court did not agree with the government's position." The ABA warned that "These comments pose serious risks to our constitutional framework that separates power among three co-equal branches."[^4]
The statements targeting judges create not only a strong potential for a constitutional crisis but also "a risk to the physical security of judges."^5 Most alarmingly, there have been "suggestions that the executive branch should consider disobeying court orders," which "threaten the very foundation of our constitutional system."^6
The Legal Profession Under Fire
The assault on the rule of law has extended beyond the judiciary to the legal profession itself. The government has taken punitive actions against law firms that represent clients the administration dislikes. As the ABA noted, "Lawyers must be free to represent clients and perform their ethical duty without fear of retribution. These government actions deny clients access to justice and betray our fundamental values."[^7]
The president has "broadened his campaign of retaliation against lawyers he dislikes" with a memorandum that "threatens to use government power to punish any law firms that, in his view, unfairly challenge his administration."[^8] This represents a direct assault on the legal profession's ability to represent clients without fear of government retaliation—a cornerstone of our adversarial system of justice.
Some law firms have capitulated to this pressure. One major firm "reached a deal to settle a conflict" with the White House after the president issued an executive order that "would have prevented it from representing many clients before the federal government." The deal required the firm to perform "$40 million worth of pro bono work for causes favored by the White House."[^9]
Critics within the legal profession noted that "lawyers are supposed to stand up to the government when there's an abuse of power" and that "there are things where principle is stronger than the dollar."^10
The Human Cost of Eroding Judicial Independence
These attacks on judicial independence and the legal profession have real-world consequences. According to a survey by the National Judicial College, 9 out of 10 judges believe the public's esteem for judges has fallen. This represents a 43 percent increase in the share of judges who perceive a decline in public respect for their profession compared to seven years ago.[^11]
More alarming still, "just over half of judges who responded said the public physical and verbal attacks on the judiciary, along with the recent drop in public trust and confidence in the courts, have negatively affected their mental health." The United States Marshals Service reports that "serious threats to federal judges have doubled since 2021, a pattern also seen at the state court level."[^12]
One judge reported, "My life has been threatened several times resulting in two arrests, one conviction, and the purchase of my new gun." Another noted, "Two weeks ago, a litigant said I should be killed and my house burnt down with my family in it."^13
Why Judicial Independence Matters
Judicial independence is not a luxury or a privilege granted to judges—it is a necessity for the functioning of our constitutional republic. When judges fear retribution for their decisions, justice itself is compromised. When lawyers fear government retaliation for representing unpopular clients, due process erodes.
As Hamilton observed, the judiciary depends entirely on the "public good opinion" for its effectiveness.[^14] When that opinion is systematically undermined through attacks on judges' integrity or threats of impeachment for unpopular decisions, our entire system of government is weakened.
The current climate recalls Justice Felix Frankfurter's warning: "The indispensable conditions of liberty can be maintained only by men not needing the courage to preserve them."[^15] Today, that courage is being tested as never before.
The Way Forward
The ABA has called upon "the entire profession, including lawyers who serve in elected positions, to speak out against intimidation." While acknowledging "there are risks to standing up and addressing these important issues," the ABA asks, "if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice?"[^16]
This is not a partisan issue. Throughout our history, presidents of both parties have occasionally bristled at judicial decisions that went against them. But the current rhetoric and actions represent something different—a systematic attempt to delegitimize the judiciary as an institution and to punish the legal profession for performing its constitutional role.
As members of the judiciary and the legal profession, we must stand firm in defense of our constitutional principles. We must remind our fellow citizens that judicial independence is not an abstract concept but a vital safeguard of their rights and liberties. And we must have the courage to speak out when those principles are threatened, regardless of political affiliation or personal risk.
The rule of law depends not on the power of judges to enforce their decisions, but on the shared commitment of all branches of government and the public to respect those decisions even when they disagree with them. It is this commitment that we must now reaffirm and strengthen.
My thoughts
The challenges we face today go to the heart of our constitutional system. As a probate judge who takes an oath to uphold the Constitution, I believe it is my duty to speak out not in partisan terms, but in defense of the principles that make our system of government possible. The independence of the judiciary and the legal profession are not partisan issues—they are American issues, essential to the liberty and justice we all cherish.
Alexander Hamilton's words from nearly two and a half centuries ago remain our guiding light: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution."[^17] May we have the wisdom to heed those words and the courage to defend the principles they represent.
This article was prepared with the assistance of artificial intelligence technologies to compile and analyze information from multiple sources. The factual content, legal analysis, and opinions expressed are the author's own.
[^1]: THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[^2]: John Fritze, Chief Justice Roberts Rebukes Trump and GOP Rhetoric About Impeaching Judges, CNN (Mar. 18, 2025), https://www.cnn.com/2025/03/18/politics/john-roberts-trump-judge-impeachment/index.html.
[^3]: Zach Schonfeld, Roberts Issues Rare Public Pushback After Trump Calls for Judge's Impeachment, THE HILL (Mar. 18, 2025), https://thehill.com/regulation/court-battles/4551782-roberts-issues-rare-public-pushback-after-trump-calls-for-judges-impeachment/.
[^4]: AM. BAR ASS'N, ABA CONDEMNS REMARKS QUESTIONING LEGITIMACY OF COURTS AND JUDICIAL REVIEW (Feb. 11, 2025), https://www.americanbar.org/news/abanews/aba-news-archives/2025/02/aba-statement-re-remarks-questioning-judicial-review/.
[^7]: AM. BAR ASS'N, THE ABA REJECTS EFFORTS TO UNDERMINE THE COURTS AND THE LEGAL PROFESSION (Mar. 3, 2025), https://www.americanbar.org/news/abanews/aba-news-archives/2025/03/aba-rejects-efforts-to-undermine-courts-and-legal-profession/.
[^8]: Devlin Barrett, With New Decree, Trump Seeks to Cow the Legal Profession, N.Y. TIMES (Mar. 22, 2025), https://www.nytimes.com/2025/03/22/us/politics/trump-lawyers-legal-decree.html.
[^9]: Danielle Kaye et al., Paul Weiss Deal With Trump Faces Backlash From Legal Profession, N.Y. TIMES (Mar. 21, 2025), https://www.nytimes.com/2025/03/21/business/paul-weiss-backlash-legal-profession.html.
[^11]: Jenna Delacruz, Nearly All Judges Believe the Public's Respect for Judges Has Declined, NAT'L JUD. COLL. (Mar. 5, 2024), https://www.judges.org/news-and-info/nearly-all-judges-believe-the-publics-respect-for-judges-has-declined/.
[^12]: Over Half of Judges Report Threats, Environment Affecting Mental Health, NAT'L JUD. COLL. (June 27, 2024), https://www.judges.org/news-and-info/over-half-of-judges-report-threats-environment-affecting-mental-health/.
[^14]: THE FEDERALIST NO. 78, supra note 1, at 465-66.
[^15]: Dennis v. United States, 341 U.S. 494, 555 (1951) (Frankfurter, J., concurring).
[^16]: AM. BAR ASS'N, supra note 7.
[^17]: THE FEDERALIST NO. 78, supra note 1, at 466.