Judges Face Rising Threats but Are Barred from Responding

Threats leveled against judges and their families are becoming increasingly prevalent. Federal judges were targeted 457 times in 2023; in 2022, 300 were targeted; and 179 were targeted in 2019. All of the threats were deemed serious enough to investigate. (https://www.cbsnews.com/news/threats-to-federal-judges-have-risen-every-year-since-2019/).

This year, judges who have ruled in actions brought by and against the Trump administration and its allies have endured even more sinister and dangerous attacks on them and members of their families. According to Nathan L. Hecht, chief justice of the Texas Supreme Court, such attacks are fomented by misinformation. He noted in June in a roundtable on the subject: When that’s all the public hears in this polarized, political environment, it affects us at a basic level. You really want to go into divorce court and worry that the judge is not on your or your lawyer’s side? It’s one thing to think that about decisions from the highest court in the land, but it gets very real to people when it undermines their confidence in the judiciary. So all of these things contribute to a very difficult environment.”

And, as Bridget Mary McCormack, president and CEO of the American Arbitration Association–International Centre for Dispute Resolution and a retired chief justice of the Michigan Supreme Court, cogently observed at the same judicial roundtable: When the public starts to lose faith in courts and what they do, we don’t have an army or money to back us up, so it’s deeply concerning. I do think that polarization has seeped into people’s views of the judiciary—and certainly how the media talks about the judiciary. I can’t remember ever reading an editorial about a decision made by my former court that didn’t describe which party nominated us, even if we very rarely had opinions that lined up along party lines.”

Apart from relying for their protection on state and federal law enforcement, judges have little recourse against such attacks, even when based on misinformation. That is because judges are generally prohibited from responding to criticisms concerning pending cases. Judith Kaye, chief judge of the New York State Court of Appeals from 1993 to 2008, stated that “judges are bound to silence when facing their critics about particular cases. . . . ”

Although the New York State Code of Judicial Conduct, for example, does not prohibit judges from “making public statements in the course of their official duties or from explaining for public information the procedures of the court,” it prohibits “any public comment about a pending or impending proceeding in any court within the United States or its territories” including any proceedings pending or impending before the maligned judge.

In 1996, the New York State Advisory Committee on Judicial Ethics relied on that rule in advising that “[a] judge may not send a letter to the editor of a newspaper responding to published articles criticizing the judge for choosing not to disqualify himself/herself in a pending criminal proceeding” even though the judge’s proposed letter would have simply addressed inaccuracies in the articles. In 2000, the Advisory Committee refined the rule by permitting a judge to respond to criticisms concerning the imposition of fines in the judge’s court to the extent of “publiciz[ing] for public information the city ordinance pursuant to which certain classes of fines were raised.”

The prohibition of judges from defending themselves against false allegations likely derives from the ancient Jewish tradition that considers a good judge to be a humble judge (Mishneh Torah, Laws of Sanhedrin 2:7). That tradition continued with the New Testament, whereby Jesus is said to have chosen not to defend himself but to “entrust himself to him who judges justly” (1 Peter 2:23). And it may be reasoned that if members of the public are to rely on the courts to provide them with the vindication they seek for perceived wrongs, so too should judges. But see supra, Fortunato, Jr., 12 Geo. J. Legal Ethics 679 (advocating for the relaxation of restrictions on judges from defending themselves from false accusations).

And yet, a judge’s silence in the face of criticism may be seen by some as an admission. Such a mistaken assumption may fuel virulent attacks, ending in unjustifiable tragedies. Given the gags that judges humbly impose on themselves, nothing could be further from the truth. It is therefore crucial that the public understand that judges are restrained from responding to criticism and from defending themselves. Perhaps the public will then rightly perceive that uninformed and reflexive violence against judges is abhorrent and leads to the erosion of the rule of law.

Barbara Jaffe retired from the New York State Supreme Court, New York County, and is now a counsel to the law firm of Borah, Goldstein, Altschuler, Nahins & Goidel, PC. She also serves as a Director of the Center for Art Law, on the Advisory Board of the Judges and Lawyers Breast Cancer Alert, and on the Supreme Court Committee of New York County Lawyers Association.