SAN JUAN, P.R.—Though not by name, Supreme Court Justice Ketanji Brown Jackson is hitting hard against Republican President Donald Trump for his—and his GOP followers’—“not random” attacks on judges in particular and the U.S. Constitution in general.
The justice told a judicial conference in San Juan, P.R., on May 1 that such attacks not only physically threaten judges, but are direct attacks on the Constitution and the rule of law, a basic U.S. principle.
“The attacks are not random,” Justice Jackson stated. “They seem designed to intimidate those of us who serve in this critical capacity. The attacks are also not isolated incidents; that is, they impact more than just the individual judges who are being targeted.
“Rather, the threats and the harassment are attacks on our democracy—on our system of government. And they ultimately risk undermining our Constitution and the rule of law.”
Such attacks, the justice added, are typical not of a democracy, but of “countries that are not free, not fair, and not rule-of-law-oriented.”
Justice Jackson, though, wound up with a positive note: Urging the assembled jurists to keep following the Constitution and the law, no matter what.
“Other judges have faced challenges like the ones we face today, and have prevailed. I urge you to keep going—keep doing what is right—for the good of the country,” she said.
Jackson spoke on May Day, which is also National Law Day. She wasn’t the first justice to criticize attacks on judges by Trump and other Republicans. Chief Justice John Roberts was. But her speech came after Trump openly defied judicial rulings—one of them a 9-0 U.S. Supreme Court decision—curtailing his tyrannical expansions of presidential power.
But the Republican majority of that same Supreme Court, almost a year ago, basically gave Trump a stay-out-of-jail-free card. Jackson was one of three dissenters. The majority ruled that sitting and former presidents have absolute immunity from prosecution for any crimes they commit while in office and almost total immunity for other actions, such as during campaigns, that could be deemed official.
The High Court’s 9-0 ruling ordered Trump to “facilitate” the return of Kilmar Abrego Garcia, a Smart Union member from Laurel, Md. ICE agents dragged Garcia out of his car, hustled him off to detention and then put him on a plane to El Salvador, which houses him in a notorious prison. Trump’s ICE agents committed a procedural error in deporting Garcia and admitted it in court. Trump nevertheless refuses to return him.
Garcia’s fate has become a top cause of both the labor movement and of the migrant rights movement. Trump alleged, without proof, that Garcia, a Salvadoran native, was a member of a New York-based gang. Garcia had actually fled El Salvador to escape the gang’s clutches, and was living peacefully in the U.S., with a wife and three children, for years.
Despite Trump, federal district and appellate judges still defy his diktats and uphold the rule of law.
The latest court defeat for Trump occurred on May 7. A unanimous three-judge panel of the U.S. Circuit Court of Appeals in Boston ordered Trump to return Tufts University student Rümeysa Öztürk from Louisiana to Vermont. Federal agents yanked her off a street in Somerville, Mass., on March 25, for writing a pro-Palestinian op-ed. They stuck her in a Louisiana hell-hole prison, depriving her of family, friends or communications with lawyers.
“Let me address what I think is the elephant in the room, which is the relentless attacks and disregard and disparagement that judges around the country, and perhaps many of you, are now facing on a daily basis,” Justice Jackson began.
“Every time I read the news or turn on the television these days, I see the affronts, and I am also reminded of the vital work judges do to protect our constitutional order. Unfortunately, that solemn duty seems both more urgent and more difficult with each passing day.
“Across the nation, judges are facing increased threats of not only physical violence but also professional retaliation, just for doing our jobs.”
Citing National Law Day, the justice, the first Black woman on the High Court, and its sole current justice who formerly was a public defender, “took personal privilege to reaffirm the significance of judicial independence and to denounce attacks on judges based on their rulings.
“A society in which judges are routinely made to fear for their own safety or their own livelihood due to their decisions is one that has substantially departed from the norms of behavior that govern in a democratic system,” the justice declared.
Key ingredient for freedom
After comparing democracies and dictatorships, Justice Jackson said “having an independent judiciary—defined as judges who are ‘indifferent to improper pressure’ and ‘determined to decide each case according to the law’—is one of the key ingredients that makes our free, fair, and law-centered society work.”
The U.S. judiciary has not always been like that, however, something Justice Jackson politely did not mention in speaking to the judicial conference. During the red-baiting McCarthy era, for example, some federal judges acceded to the hysteria of the times—hysteria which extended, at least in one lower federal court in Chicago, all the way through the early 1970s.
And before the New Deal, federal judges interpreted the Constitution to prevent workers from organizing, calling it a violation of businesses’ property rights which the jurists “found” in the nation’s basic charter. Jurists even said anti-trust laws could apply to unions, while turning a blind eye to the business monopolies those laws were designed to break up.
And in the 1950s, the Supreme Court caught hell, too, for upholding the rights of dissenters. “Impeach Earl Warren!” then the Chief Justice, the far-right John Birch Society screamed after those justices legally stood up for civil rights, for freedom of speech and against the era’s red-baiting hysteria.
Instead, Justice Jackson discussed the courage of Southern federal judges in Alabama, Louisiana, and Mississippi, who had to implement in the 1950s and 1960s, in practical terms, the Supreme Court’s 1954 Brown v Board of Education ruling. That court unanimously outlawed segregation. Jim Crow, in so many words, violated equal protection of the law.
Justice Jackson said those judges, including Frank Johnson, John Minor Wisdom and J. Skelly Wright, faced down death threats, cross-burnings on their lawns, fire-bombing of Johnson’s mother’s house and public and constant insults—and wholesale resistance from the Louisiana legislature—and upheld the Constitution and the court. They also faced racist governors, notably George Wallace.
“It is very stressful to have to decide a difficult case in the spotlight and under pressure,” said Justice Jackson. As a federal district judge, she issued pro-worker rulings from that bench against Trump’s first-term unconstitutional—her words—executive orders slamming federal unions and workers.
“For a single district judge, having to manage a high-profile, fast-moving, consequential case involving a challenge to government action is enormously difficult. When you add to that having to endure baseless attacks on your intelligence and integrity— coming from people who are not so subtly trying to influence your decision making—it can sometimes take raw courage to remain steadfast in doing what the law requires.”
Which brought Justice Jackson back to another courageous judge, John J. Sirica, and another high-profile presidential scandal, complete with political pressure: Watergate, 51 years ago.
“Judge Sirica followed the law and the facts where they led, ignoring the political consequences that I am sure he knew would befall the presidency—and the party that appointed him to the bench,” under Republican President Dwight Eisenhower. “As he put it, ‘Despite efforts in our executive branch to distort the truth…the court system served to set the record straight.’
“So when I get discouraged about the news of attacks on judges and worry about the personal sacrifices and weighty responsibilities of the role, I think about those courageous district judges, and others, who also served during times of great peril.
“Rather than bowing to the pressure, they stayed the course, using the authority that had been vested in them to do the right thing—and by that I mean, to rule independently in each case and in the manner that they believed the law required. And history now honors each of them for that noble service.”
We hope you appreciated this article. At People’s World, we believe news and information should be free and accessible to all, but we need your help. Our journalism is free of corporate influence and paywalls because we are totally reader-supported. Only you, our readers and supporters, make this possible. If you enjoy reading People’s World and the stories we bring you, please support our work by donating or becoming a monthly sustainer today. Thank you!
CONTRIBUTOR
