Legal Happenings
Former Government Officials and Judges Open Up About Threats to the Judiciary
June 09, 2025
For judges, stress comes with the territory — but the challenges they are currently experiencing, including controversial and politically charged cases and threats to themselves and their family members, are unprecedented.
This issue was the focus of a two-panel event hosted by the Bolch Judicial Institute in Washington, D.C., in late May to mark the 10th anniversary of Duke Law School’s publication, Judicature.
One panel featured Harvard Law School professor Jack Goldsmith and New York University School of Law professor Bob Bauer. The other panel convened Lee H. Rosenthal, currently a senior judge on the U.S. District and Bankruptcy Court for the Southern District of Texas, and retired Seventh Circuit Court of Appeals Judge Diane P. Wood, now director of the American Law Institute. Both panels were moderated by Duke Law School Dean Emeritus David Levi, former chief judge of the U.S. District Court for the Eastern District of California.
In an interview, Levi said the two panels offered an understanding of the work of judges at a challenging time. “The two scholars, they have been writing together for a long time and they are experts in presidential power. [They] have been studying the relationship between presidents — not just this president but presidents over time — and the judiciary,” Levi said. “And each one [of the two judges] has served for decades … [Considering] the events of the time, which are so pressing and stressful for us, how do judges navigate that in their day-to-day job? I think [hearing this] is very interesting.”
During the panel, Goldsmith contrasted government attorneys’ conduct in the lower courts versus before the U.S. Supreme Court. In the lower courts, government lawyers have shown up unprepared for argument and displayed disrespect in briefs and hearings, said Goldsmith, who served as assistant attorney general in the Office of Legal Counsel during the George W. Bush administration. Goldsmith also pointed to senior government officials criticizing judges and threatening noncompliance with their decisions. On the other hand, lawyers from the Department of Justice’s Office of the Solicitor General, which represents the government before the Supreme Court, are respectful of the High Court and the justices while forcefully advocating the administration’s views, said Goldsmith. “They have made a point of emphasizing at the Supreme Court level how they plan to comply with Supreme Court orders,” he said.
Goldsmith also noted a high level of White House engagement in federal cases and questioned whether the strategy was in fact to win cases and only then follow court decisions.
Bauer, who was President Obama’s White House counsel, said he has a bit more optimism about how this will play out. “There is, I think, still a profound resistance in the body politic — even in quarters sympathetic to [Trump] politically — to the idea that the government disregards court orders, and I think they know that.”
Goldsmith tied his final point to his earlier one that the underlying issue is the chief executive’s expanding power going back decades and with administrations making legal pronouncements with more executive orders. He added that what is going on right now would logically lead to the consideration of constitutional amendments to Article II, which enumerates the president’s powers. “I think the raw, latent power of the executive is going to be on display in the next three and a half years and is going to make [amendments] necessary.”
In the second panel, Judge Rosenthal talked about how judges are currently experiencing more friction with and less cooperation from the Justice Department. “[Although] this is unprecedented and incredibly difficult for district courts … our courts are doing really well,” Rosenthal said, adding that the support for judges across the country has mattered. “I do know that we have been buoyed by the fact that the ABA [and] many other institutions … have spoken out and given us both praise and support for the work that is being done,” Rosenthal added.
Wood said that personal attacks on judges “are not shaking their resolve. Some of these judges are facing personal threats, and it is hard to know if it is just so much hot air or whether there is actually something behind it. And they are still going to work every day, and they are doing their job,” Wood said.
Wood added that judges are working in an incredibly difficult atmosphere, handling cases in which the government is the plaintiff and, in others, the defendant.
“This is new territory for the courts, and they are trying to apply well-established old doctrines to new situations for which they may not serve very well,” Wood said, giving examples of standing and redressability issues, as well as the government’s resort to old statutes, such as the International Economic Emergencies Power Act (IEEPA), to support the Trump administration’s actions against other countries.
“Courts are not sure what they really have the power to do anything about, and so I think they are proceeding as they probably should be — cautiously — so as not to get out beyond what is understood as the role of the court, even as they feel that the present situation is not what these laws were made for,” Wood said.
In an interview, Wood said that public discussions and open interactions with the bar and other groups will help the cause of justice across the country. “The better the public understands [the role of courts], the more the courts are going to be able to do the job they are designed to do,” Wood said.
Rosenthal acknowledged that there have been personal threats to judges, such as unordered pizzas being delivered to their homes with menacing messages. “How do the threats play into all this? It really doesn’t because you just need to do your work,” Rosenthal said.
Levi highlighted the ongoing work of Bolch Judicial Institute Director Paul W. Grimm, who formerly served on the U.S. District Court for the District of Maryland, to call attention to the safety concerns of judges.
“We have independent judges in this country under the Constitution for the very reason that they will decide cases without fear,” Levi told the D.C. Bar. “People who are trying to inject fear into the calculus are acting in a way that is against our constitutional principles from the very beginning. The founders of our country saw how important this was.”
