Judicial Independence May Require Confrontation

“Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.” This essential insight from Justice Anthony Kennedy is cited by Chief Justice John Roberts in his 2024 Year End Report on the Federal Judiciary. The report rightly expresses concern about declining trust in the independence of the courts.

On March 4, following an address to Congress, cameras caught President Trump patting Roberts’s shoulder, saying, “Thank you again. Thank you again. Won’t forget.” Earlier, Attorney General Pam Bondi—commenting on the freeze on federal funds instituted by the administration—asserted that “the Supreme Court is backing us up.” Yet, on Wednesday morning, the Supreme Court rejected a plea from the administration to overrule a lower court’s decision that funds must be released to pay foreign aid contractors for work they have completed.

That said, many more cases involving the current administration are making their way to the Supreme Court. When faced with even more fundamental constitutional claims, there is a risk that, in a sincere effort to preserve the institution and avoid a constitutional crisis, the Court may seek to sidestep a significant confrontation with the executive branch in the face of recent threats to ignore court orders. This would itself reflect a devastating lack of independence and de facto create the very constitutional crisis and damage to the public’s trust that the chief justice presumably seeks to avoid.

Roberts’s entire 2024 report focuses on the importance of independent courts. He describes King George’s efforts to undermine the independence of the courts in the colonies, noting that such actions contributed to the colonies’ rebellion. He reminds us of Alexander Hamilton’s Federalist 78, quoting the French political philosopher Montesquieu in support of the principle that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” He then cites four areas of activity that “threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.” These threats are designed to coerce judges into ruling based not on the law but rather to avoid the threatened action, thus undermining their independence.

The threats the chief justice describes are very real. Violence and threats of violence against judges have skyrocketed recently in the U.S. Efforts to impeach judges who rule against actions by the current administration reflect the kind of intimidation, short of violence, that threatens careers. And, as Roberts points out, disinformation—that is, intentional lies as distinguished from disagreement and criticism—is amplified and exacerbated by foreign and domestic actors, including Russia, who see undermining trust in the courts as a powerful way to weaken our democracy.

But it is threats to defy court orders that most clearly aim to defeat the courts’ independence and demolish a key foundation upholding our constitutional republic.

Roberts notes that two of the major pillars of our republic—separation of powers and judicial review—create an inevitable tension between the branches of our government:

Every Administration suffers defeats in the court system—sometimes in cases with major ramifications for executive or legislative power or other consequential topics. Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed …. Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.

Some observers saw this as a warning shot across the bow to Vice President Vance, who in September 2021 said that Trump, if reelected, should “fire every single mid-level bureaucrat, [and] every civil servant in the administrative state … and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’” More recently, the president, citing a quote attributed to Napoleon, wrote “He who saves his Country does not violate any law.” However, the president has also stated his intention to abide by the decisions of the courts even if he disagrees with them.

Regardless, it would be a mistake for the courts to make decisions on the assumption that a ruling against the administration will inevitably provoke a clash between the branches. Threats to ignore a court decision are designed to elicit such behavior. The intent is to intimidate the courts into reaching for dubious procedural or substantive excuses not to find constitutional impediments to executive branch actions. Yet, if these legalistic gymnastics lack legitimacy, the constitutional crisis will not have been avoided, even if it is less theatrical. The role of the Court in maintaining the constitutional framework of checks and balances and serving as an independent interpreter of the Constitution—calling balls and strikes—still will have been ceded, along with the public’s trust.

If the executive branch is determined to provoke a constitutional crisis, then confrontation is inevitable. It is better that the crisis arises from the Court doing its job than from the Court being cowed into submission.