America’s judges are under attack, ‘legal giant’ says at USC law school event

Today’s judges who issue unpopular decisions face smear campaigns questioning their integrity and other attacks that undermine the rule of law itself, a leading constitutional scholar told a symposium at the University of South Carolina Rice School of Law.

“I do believe we are seeing at this moment, an attack on the judiciary, unlike any before in American history,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law.

“Last year, according to the United States Marshals, there were 546 credible threats against federal judges,” he told the audience, who were in the School of Law’s courtroom-like auditorium.

At the symposium, held Feb. 26, in addition to law students and attorneys, were seven federal judges from South Carolina.

The seven were U.S. District Judges Joe Anderson, Sherri Lydon, Cameron McGowan Currie and Richard Gergel, as well as Fourth U.S. Circuit Court of Appeals judges Marvin Quattlebaum, DeAndrea Gist Benjamin and Jay Richardson.

Judge Anderson introduced Chemerinsky, calling him “a true legal giant” and “unquestionably our nation’s leading constitutional scholar” whose text books are used in law schools across the country.

Chemerinsky said that not only do powerful politicians sometimes assail individual judges with demeaning language, subverting the judiciary as a whole, but also many individual judges are becoming the targets of anonymous people angry at judges’ decisions who try to intimidate them by doing such things as sending pizza or police SWAT teams to judges’ houses.

The experience of U.S. Judge John Coughenour in Oregon exemplifies what can happen when a judge issues an opinion on a hot-button political issue, Chemerinsky said.

Last year, when Coughenour blocked President Donald Trump’s birthright citizenship order calling it “blatantly unconstitutional,” he was “deluged” with death threats, Chemerinsky said.

On Feb. 20, when the U.S. Supreme Court handed down a 6-3 opinion that said Trump’s tariffs were unconstitutional, Trump said the families of the justices who ruled against Trump should be “ashamed of them,” that those justices were “unpatriotic,” and that they are “betraying” the Constitution.

Trump pushes limits

“Never in American history has a president spoken of the judiciary in this way,” Chemerinsky said.

Conservative judges and justices are also under fire, Chemerinsky said, citing the 2022 case of a man with a gun being taken into custody near the house of U.S. Supreme Court Associate Justice Brett Kavanaugh. The man pleaded guilty to attempting to assassinate Supreme Court justice and is serving an approximate 8-year sentence.

“The essence of the rule of law is that no one — literally no one — is above the law, but how can we possibly ensure that except by having an independent judiciary?” Chemerinsky asked.

Ironically, the constitutions of the United States and Soviet Union are alike — with one key difference, Chemerinsky said. That difference is that in America, judges have the power to declare laws invalid, he said.

“In Russia, if you don’t do what the government likes, they just remove you from being a judge,” he said.

There’s a great need for public education to teach people about the value of the role of an independent judiciary in a democracy, Chemerinsky said.

People who unlawfully threaten judges should be vigorously prosecuted, he said, adding that nonpartisan groups such as bar associations should speak out when unfair attacks on judges are made.

But it is a hard topic to get across because the phrase “judicial independence” just doesn’t resonate with people, he said.

Attacks on judges are timely topic

The title of Chemerinsky’s speech — Will the Guardrails of Democracy Hold? — was timely.

On Sunday night, CBS’s 60 Minutes aired a segment to its 8-plus million viewers on the same subject. Its theme: the judiciary is “Under Siege.” It interviewed 26 federal judges worried about threats to the judiciary.

And one candidate in an ongoing state race for an open S.C. Supreme Court seat, Associate Justice John Few, has been hit with attack ads declaring him to be a “known judicial activist” who is “responsible for thousands of abortions” — descriptions for which there is little factual basis.

“It’s comical,” said Few on Monday, indicating that he believes the attack ads are so outlandishly far from the truth that they are not worth commenting on.

The Supreme Court election is Wednesday in the General Assembly. The 170 lawmakers will vote on Few and three other candidates.

Veteran attorney wowed by Chemerinsky

Veteran Columbia attorney Joel Collins, who teaches a class at USC Honors College on the Constitution, was in the audience and said Chemerinsky’s talk was timely.

Trump’s recent criticisms of Supreme Court justices who voted against him in the tariff case as “lapdogs” were uncalled for, Collins said. “What an outrageous thing for a president of the United States to say about justices on the Supreme Court!”

Grace Smith Phillips, editor-in-chief of the South Carolina Law Review, which organized the event, said of Chemerinsky’s talk, “We are all the better for having heard it.”

Putting together the symposium, with its approximately 20 speakers, was a year in the making, Phillips said. The topic was a natural, she said, given that judges and their decisions have been much in the news.

“We didn’t want it to become a political symposium,” she said. The event’s twin themes of judicial accountability and judicial independence are things everyone should care about, she said.

Opening the session, Law School Dean William Hubbard stressed the importance of the symposium’s topic.

“Simply put, without an independent and impartial judiciary, the rule of law is weakened,” Hubbard said. ”Without the rule of law, our democracy falters.”

Hubbard said the idea of the judiciary being independent goes back to the year 1215 at a field in England called Runnymede, where the nobles forced King John to agree to, among other things, a system of courts called “common pleas,” Hubbard said.

Until then, there was something called “the king’s court,” which basically did the king’s bidding.

“Separation from the king’s court made it clear that judges were to operate independently of the king,” Hubbard said.

Also attending and speaking on judicial independence was former U.S. Rep. Trey Gowdy, R-SC.

Chemerinsky said it is appropriate to criticize judges’ rulings.

“But there’s also a difference between disagreement on the merits and personal attack. Calling judges ‘lunatics’ or ‘unpatriotic’ should have no role in the rhetoric of our democracy.”