Retired Judges Warn of Weakening Judicial Independence, Threats to Constitution

Two former federal judges have issued a stark warning about the erosion of judicial independence and its potential to harm the U.S. Constitution. Paul R. Michel, previously a chief judge of the U.S. Court of Appeals for the Federal Circuit, and Robert J. Cindrich, a former U.S. District Judge for the Western District of Pennsylvania, expressed their concerns in an essay published on Constitution Day.

Michel and Cindrich, appointed by presidents of different parties, stated that the foundational principle of divided power within the U.S. system is being threatened. They noted that judges are increasingly perceived not as public servants applying the law, but as political adversaries. Court decisions are often judged based on whether they align with desired political outcomes, leading to a climate where judges face calls for retaliation and removal due to their rulings.

"Threats against judges and their families remain at deeply troubling levels," the judges wrote. They emphasized that such threats are not merely a matter of workplace safety but strike at the heart of the constitutional promise of neutral decision-making based on law, free from fear.

While acknowledging that judicial decisions can and should be scrutinized and criticized, the former judges differentiated this from intimidation. They highlighted the established legal avenues for challenging court decisions, such as appeals and legislative changes, as the proper mechanisms for resolving disagreements within a legal framework. Threatening, harassing, or intimidating judges, they argued, bypasses these lawful processes and weakens the Constitution.

Alexander Hamilton's description of the judiciary as the "least dangerous" branch, reliant on public confidence and respect for its judgments, is particularly relevant, according to the authors. They believe this confidence is currently under significant strain. The judges recognized that public concerns about judicial ethics, perceived ideological leanings, and the authority of unelected judges are valid and warrant serious discussion. However, they stressed the critical distinction between holding the judiciary accountable and undermining its fundamental constitutional role.

American history, they pointed out, demonstrates the judiciary's crucial function in checking executive and legislative power, protecting rights, and ensuring that legal questions can be asked and answered. The judges concluded that the weakening of constitutional systems often stems from the erosion of norms, the prioritization of political advantage over institutional restraint, and the transformation of political opponents into enemies. On this Constitution Day, they urged Americans to consider their own "constitutional habits," including defending the independence of courts, lowering political rhetoric, rejecting threats against judges, and upholding constitutional limits for all leaders.