How to Break a Judiciary, Part 3: What is to be Done?
Guest Essay by Alyssa King
In the previous installments in this series (here and here), I described dangers to the independence and effectiveness of the federal courts, including attempts to change who hears the cases and interference with working conditions (anything from cutting off library access to direct physical threats). In this final essay, I consider how judges and lawyers can protect the federal courts as an institution.
What is to be Done?
Judges and chambers staff can prepare now for many of the threats I have outlined, reducing the risk that inevitable attacks on their impartiality and integrity will stick. US lawyers can provide support for judicial independence by insisting, loudly and repeatedly and in ways that cost us money, on our professional standards and on the version of judicial independence necessary to a free and democratic society in the common law legal tradition. Those outside the United States can also play a role.
A. In Chambers
The new Judicial Security and Independence Task Force will hopefully help federal judges prepare as a group for the challenges ahead. Judges can also take steps now to prepare members of their chambers who may be most vulnerable in the event their work is disrupted.
Federal law clerks are often only a few months out of school and may lack experience working in a large, heavily scrutinized, bureaucracy. If access to buildings and work accounts gets interrupted, someone, somewhere, is likely to make a mistake. Judges should prepare their clerks for what may be coming, offering clear guidance on what will happen if payments are held up and how chambers will continue to work if access to the building or to the computer systems is interrupted.
Because they are at the beginning of their careers, clerks are also more vulnerable if a mistake gets blown out of proportion or if (mistake or not) their names start appearing in right-wing internet forums. Judges should protect clerks by proactively teaching them good security and ethics practices and shield their identities to the extent possible if chambers becomes a target.
The attacks from the White House do not mean we should give up on fixing court personnel processes and ethics rules. If anything, they are a reason to be serious about maintaining confidence in the courts. To the extent that the federal judiciary has tolerated loose ethics practices, from toothless gift regulations for the Supreme Court (although not for lower courts) to harassment of clerks, now remains an excellent time to clean up its act.
B. What the Bar Can Do
We have many good accounts of what judicial independence in the common law tradition means. We have a Code of Conduct for US Federal Judges as well as a model code of judicial conduct, and there are both aspirational and more modest international descriptions of judicial independence to which US lawyers have made important contributions. US lawyers should draw on all these resources to say what independence is and is not to various audiences and to distinguish the types of judicial independence that belong to our tradition from those that reflect an understanding that would subordinate the courts to the executive.
Doing so is going to require some planning and coordination. The ABA and other bar associations have begun speaking up, repeating basics like “support efforts to preserve judicial independence and increase public confidence in the federal courts, oppose efforts to undermine the independence of judges.” Lawyers, firms, and legal academics are signing on to briefs in support of firms that have been targeted. Big Law has not exactly covered itself in glory—with many reportedly refusing to help defend targeted firms. But now that the scope of the threat is becoming clearer, lawyers and law firms can plan for what to do in the scenario in which they are targeted and, in so doing, may even find the means to act collectively. Although many of the biggest law firms did not sign on, over 500 firms joined an amicus brief supporting Perkins Coie in its lawsuit to have the executive order against it declared unlawful. 363 US law professors also filed a brief, along with an array for former DC bar presidents and a group of public interest organizations spanning the ideological spectrum.
C. The Legal Academy
Those of us with the luxuries of time and academic freedom are well positioned both to describe what we see and make arguments about what should be. Perhaps it is no surprise that I will make another plea for the relevance of comparative law in the study of US courts, but I would like to see comparativism in teaching as well as research. Drawing on comparative examples, as well as on US legal history, can help give students tools to make better sense of what is happening.
US judges, lawyers, and academics need to learn from colleagues who have fought for justice and fairness against even longer odds. Some of those colleagues are even refugees in the United States. They have much to teach us about how to protect courts, protect clients, and protect ourselves against the sorts of risks that are new to most of us, but that they have had to address their entire careers. Likewise, lawyers who have represented marginalized clients within the US have a lot of knowledge that will be newly relevant to those who represent corporate ones. And when this is over, if it is over, we need to maintain that professional solidarity and avoid a retreat into the exceptionalism that never served the interest of justice.
In other contexts, the risk of losing business to other jurisdictions has provided a reason to slow down government attacks on courts and lawyers. But the United States, like China or India, has such a large economy that we cannot count on that logic to protect courts, especially if business people convince themselves that the rule of law will still protect them, even if it fails others. The best I can offer is that it is easier to act earlier rather than later and that we should take these threats seriously and see them for what they are.
Alyssa King is an Assistant Professor at the Queen’s University Faculty of Law. She is a member of the New York Bar.