How to Break a Judiciary, Part 2: Difficult Working Conditions
Guest Essay by Alyssa King
In yesterday’s first installment in this series, I located the Trump administration’s assault on the courts and the bar in the tradition of authoritarian consolidation of control of legal institutions. I then described methods by which authoritarians ensure that legal challenges to their actions go before friendly judges: hiring friends, firing enemies, and altering jurisdiction. Today I focus on how working conditions shape judges’ ability to discover, and effectively respond to, illegal government action. These issues range from the deceptively benign—all the good faith and experience in the world is sometimes little match for a computer that will not turn on—to the overt threats.
Difficult Working Conditions
The judiciary is a bureaucracy and as a bureaucracy is vulnerable to the same techniques—hiring and funding freezes, cancelled contracts, and lockouts—that are currently causing harm to so much of the non-partisan executive branch. Judges also have reason to fear right-wing violence, especially if one stops staffing security at appropriate levels. I focus in this section on threats to federal Article III courts both because that is where many lawsuits challenging Trump administration actions are currently lodged and because the federal courts are well-resourced compared with state courts or Article I courts. Federal judges enjoy life tenure and considerable budgetary autonomy, and they hear many fewer cases than state courts, despite frequently being better staffed.
A. The Resources to do the Job
Federal judicial branch salaries cannot be reduced, but federal courts also require staff, physical plant in the form of courtrooms and law libraries, and subscriptions to expensive legal databases. Fortunately, since 1939, the judiciary has administered its own budget under the auspices of the Administrative Office of the US Courts, which makes its yearly request directly to Congress. This budgetary structure protects judiciary employees and resources. It also renders the federal courts somewhat less vulnerable to a government shutdown. In the past, the AO has relied on small surpluses to keep the lights on and pay employees. But a shutdown still carries risks. Currently, the US federal government is operating on last year’s budget with a continuing resolution that will last until the end of September. The federal judiciary has been asking for, and not getting, increased funds for the past several years. This pattern suggests that it may not be in a position to last as long in case of a new shutdown in the fall.
Theoretically, DOGE has no authority to come into the Federal Judicial Center and start moving things around. But that last statement assumes DOGE staffers know or care how the federal government is organized—a dubious assumption given their actions so far. The Administrative Office of the US Courts could also find itself a victim of the payments crisis.
1. Physical Plant
Courthouses are controlled by the General Services Administration (GSA), which has already been subject to DOGE “efficiency.” Several courthouses were recently listed on the now-retracted list of federal buildings for sale. Limiting building access can make work difficult. Reducing the number of courthouses makes it more difficult for parties and witnesses to appear in person. Moreover, sometimes evidence, like evidence that someone is a member of a terrorist organization, is only viewable in a special compartmented information facility (SCIF).
2. E-filing and Library Resources
My biggest concern is that, through some version of payment processing or server failure, judges and staff might be deprived of the tools to do their jobs. For instance, electronic dockets are often deeply integrated into a district court’s workflow, with paper options possible but not nearly as easy for anyone. Breaking CM/ECF (i.e., internal PACER) would break the courts, at least until offices could revert to paper (including teaching term law clerks how to use paper systems).
Moreover, the judiciary relies heavily on library resources, including both physical books and a wide variety of paid research tools. If they were to lose access to these resources, judges and clerks might then lean even more heavily on the materials brought to them by the parties. Others would likely seek out workarounds—drawing from personal libraries, free resources like Cornell’s LII, or, more problematically: friends’ Westlaw passwords.
Justice Nkemdilim Amelia Izuako describes a situation like this one during her stint as a contract judge hired by the Commonwealth to provide technical assistance in The Gambia. The courts were poorly resourced, with cases frequently being reshuffled and judges like Izuako relying on home libraries to produce handwritten judgments. When the Gambian government refused to recommend her renewal, it accused her of improper relationships with the legal profession, such as relying on friends for research assistance—a charge Izuako vigorously denied.
Izuako’s story suggests two results of degraded library resources: 1) Lack of resources creates pressure to go along to get along because it is hard to do otherwise without the ability to conduct good quality research; and 2) it opens judges to accusations of ethical breaches if someone suspects they sought help elsewhere, i.e. if they are too efficient.
Efforts to slow down case processing would not result in favorable judgments for Trump but would make it harder for judges to move quickly in situations in which time is of the essence, such as when you have cut off funding for medical and food aid, halted clinical trials, or loaded people on one-way flights to an El Salvadorean prison. Decisions might also degrade in terms of the quality of the research that the judge and their staff have time to undertake.
B. Lawyers
The common law tradition relies heavily on lawyers to move a case forward, even in the context of ubiquitous case management in federal courts. A month ago, it seemed the main threat to this side of the judicial process was from overwhelmed Department of Justice lawyers who were unable to provide accurate information to the court or communicate with the agencies they were supposed to represent in a timely fashion.
Now, with the administration openly threatening lawyers, federal judges also need to worry about the quality of work product that they get from private sources. The administration has prevented lawyers from accessing the information they need to do their jobs or barred them from entering courthouses or administrative agencies, as occurred with Perkins Coie and Paul Weiss (until the firm made a deal), Jenner and Block, WilmerHale, and specific people like Norm Eisen. Some firms are reportedly turning down work from Trump critics. Others have made deals, under pressure or preemptively, offering vague promises of pro-administration “pro-bono” work and avoiding “discrimination.” So far these “biglaw” firms have not succeeded in taking collective action to protect themselves, and the record does not look good. US firms and lawyers handled challenges in Hong Kong, as well as Russia and Mainland China, primarily by leaving. In Hong Kong, political pressure worked to silence firms and individuals in the wake of 2020 protests.
The aim appears to be to chill representation for disfavored groups (here, immigrants) in favor of other groups the administration prefers (at least until it figures out that veterans’ legal assistance work typically involves suing the government to change policy or expand an individual’s benefits). Even if clients are still able to file their cases, lack of representation or disruptions in representation will slow things down and lead to mistakes. The orders and “settlements” undermine the goal of having courts that are open to everyone and that can dispense accurate and impartial justice. That is, they can affect the courts’ sociological legitimacy.
The threats against lawyers in private practice and apparent disregard for those in the government are of a piece. They devalue legal expertise and treat outcomes in court as if they were a matter of who can strongarm whom rather than decisions that are the result of the application of law to a set of facts such that the parties both can influence and understand the outcome on its own terms. That is, they attack the very predictability and participation that are foundations of the rule of law.
C. Physical Threats
The administration is also attempting to use the threat of physical violence to shape case outcomes. This threat is especially salient because guns are prevalent in the United States and the President controls the U.S. Marshals Service, which is responsible for protecting federal judges.
Threats of violence delivered with a veneer of deniability have played a significant part in undermining judicial independence in other authoritarian contexts—especially when the government cannot easily replace judges. Hong Kong judges frequently have not shared Beijing’s approach to law. Some have been acquitting defendants caught in Beijing’s post-2020 crackdown on protest. Mass firings would bury the city’s already tarnished reputation in international commercial law. Nor are many judges likely to be amenable to direct attempts at telephone justice. However, the regime is adept at using other actors to telegraph its preferences, including through stories supporting attacks on judges in local media. These stories finally reached such a high degree of vitriol that Lord Jonathan Sumption, an “overseas non-permanent judge” on the Hong Kong Court of Final Appeal and hardly known as a liberal friend of protestors, decided to resign. Sumption cited press attacks on local judges as creating a climate of fear in which the judges were reluctant to rule against the government.
Judges are public officials making important decisions and they should thus expect to receive some very sharp criticism. In many cases, such criticism is a good thing. What is different about Hong Kong and about what Trump-Musk are trying to do is the implied threat to more than professional reputation. The relentless, over-the top criticism of judges in regime-allied media seems designed to signal that violence against them might be acceptable, even patriotic.
In the face of these threats, how can judges and lawyers resist? I shall address those questions in the third and final installment in this series.
Alyssa King is an Assistant Professor at the Queen’s University Faculty of Law. She is a member of the New York Bar.