Judges have an incredibly hard job. They are tasked with deciding cases involving inordinately high stakes: billions of dollars, decades of a human being’s life, even whether to put a person to death. These judges deserve to feel as secure as possible in performing their solemn responsibilities.
Threatening judges or their families is a disgraceful and criminal act. Anyone who perpetrates such conduct — or worse, who engages in violence — should rot in a cell for years, decades, or even life. This barbaric behavior threatens the foundation of our republic because we need an independent judiciary to resolve disputes in an orderly way. Without this essential component, our country would descend into anarchy.
Recently, former President Donald Trump courted controversy because of a social media post about the daughter of acting New York State Supreme Court Justice Juan Merchan. Justice Merchan is presiding over Mr. Trump’s criminal trial in Manhattan about a businessman settling a nuisance claim.
The First Amendment protects one’s right to speak freely, but threats are not protected by the First Amendment. Many Americans who have threatened public officials have learned this lesson the hard way, through a federal conviction and prison time. Mere criticism of the government, however, is protected free speech.
Mr. Trump never threatened Justice Merchan or his daughter; rather, the former president asserted that, based on Justice Merchan’s daughter’s post, Mr. Trump could not receive a fair trial before Justice Merchan. Whether one agrees with Mr. Trump or not, one cannot reasonably assert that these comments constitute a threat. The post was instead mere criticism, and the freedom to criticize the government is a cornerstone of our republic.
Judges have a long history of being the targets of threats and even violence. In Chicago, a deranged litigant murdered members of U.S. District Judge Joan Lefkow’s family. In New Jersey, another demented litigant killed District Judge Esther Salas’ son and seriously wounded her husband. These cowards then killed themselves to avoid facing the legal consequences of their monstrous conduct.
In May 2022, a leak of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case that overruled Roe v. Wade, was published. A man named Nicholas Roske was so enraged, authorities say, that he flew from California with the goal of killing three justices.
Mr. Roske wound up at the home of Justice Brett Kavanaugh and his family (the justice’s wife and two young daughters were home). Mr. Roske had brought a gun, ammunition, zip ties and boots so that he could move stealthily about the Kavanaughs’ home during the perpetration of the assassination, authorities say. Thankfully, law enforcement personnel who were protecting the Kavanaughs spotted Mr. Roske, who then called 911 and claimed to be suicidal. Mr. Roske is awaiting trial on numerous charges, including attempted murder.
The Dobbs draft sparked other threatening repercussions. Justices had to be whisked from their homes and taken to safe houses because pro-abortion activists made public the home addresses of the justices and their families. Justice Amy Coney Barrett’s young children were not spared as protesters descended upon their school. The justices’ homes were deluged with protesters, violating Title 18, U.S. Code, Section 1507, which criminalizes the protesting of judges at their homes while a case is pending.
Scandalously, President Biden’s Department of Justice, under Attorney General Merrick Garland, refused to file charges, saying the government would prosecute only violent protesters.
Threats against Supreme Court justices occurred before Dobbs. In 2020, the Supreme Court heard another abortion case, June Medical Services v. Russo. On the morning of the argument, then-Senate Minority Leader Charles E. Schumer stood outside the Supreme Court and let his views be known about two sitting justices.
“I want to tell you, Gorsuch. I want to tell you, Kavanaugh!” Mr. Schumer shrieked. “You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions!” Chief Justice John Roberts called Mr. Schumer’s statement “dangerous,” and the senator later implausibly claimed that he had not been making a threat, using the excuse that he is from Brooklyn.
Threats and violence, unlike criticism, are destructive to our republic and must result in gargantuan legal consequences for the perpetrators. For instance, Tiffani Shea Gish — the Trump-deranged degenerate who threatened to have Judge Aileen Cannon killed in front of her family — was sentenced to 37 months in prison. The pearl-clutching limousine liberal legal commentators on TV will hopefully acknowledge this distinction and cease their pitiful hyperventilations every time the former president exercises his First Amendment right to criticize — not threaten — judges, which he is allowed to do.
Many of the “defenders of democracy” of the legal chattering class view Mr. Trump as an existential threat. They believe if liberal judges receive any public criticism, that constitutes a threat. But if conservative judges’ addresses are made public and they are threatened by mobs outside their homes, even after numerous assassination attempts against several judges in the recent past, that constitutes “free speech.” Mislabeling lawful criticism as threats to squelch lawful dissent is the true threat to democracy. Unless, of course, free speech is free, except for Mr. Trump.
Mike Davis is the founder and president of the Article III Project, which defends constitutionalist judges. As the former chief counsel for nominations to Senate Judiciary Committee Chairman Chuck Grassley, he served as the staff leader for Justice Brett Kavanaugh’s Supreme Court confirmation. He also served as a law clerk to Justice Neil Gorsuch, both on the 10th U.S. Circuit Court of Appeals and the Supreme Court.
