The individual and collective isolation of magistrates will be deepened, further alienating them from the streams of ordinary life. More and more they will lose their identity as normal people, disappearing into their symbolic roles. Their lives are irrevocably changed.
This now inevitable development is not only bad for judges. It’s bad for democracy. And it’s terrible for the rule of law, which benefits when judges can do their job with minimal fallout on their personal lives.
For more than 200 years, judges have for the most part lived enchanted lives, at least from the perspective of senior officials. From John Marshall to Thurgood Marshall and up to the present day, there has been only one recorded attempt to kill a judge, in 1889 (Judge Stephen Johnson Field’s bodyguard, a U.S. Marshal, killed the ‘aggressor). Someone shot a bullet through a window in Judge Harry Blackmun’s chambers in 1985, presumably because he was the author of Roe v. Wade; no one was hurt.
Except for some exceptionally tumultuous times, the names of the judges were barely known: As recently as 2018, more than half of Americans could not name any of the nine members. Their faces were almost anonymous. In Washington DC in the late 1990s, I saw the host of the Capital Grille – a restaurant five minutes from the courthouse – ask Judge David Souter if he was “with the Souter party” who had made a reservation ( “I guess I am,” he replied modestly and ironically).
Why has this changed now?
A reason cannot be ignored. The man outside Kavanaugh’s home who was charged with attempted murder was reportedly, among other things, furious at the Supreme Court‘s impending overturning of Roe v. Wade and federal abortion rights. Just as resistance to Roe has spawned deadly attacks on doctors and abortion clinics over the decades, his overthrow could ignite passions to a point we cannot yet anticipate and drive some people mad. We know that the court has never rolled back basic individual freedoms like this in its history. The crumbling of institutional norms – exemplified by Justice Samuel Alito’s leaked draft majority opinion – stems directly from the radicalism of what is seemingly to come.
Of course, judges should be able to make decisions – even those that are terribly wrong – without their lives being threatened. Liberals who believe in the rule of law will not minimize these threats. Liberal judges will need protection as much as conservatives. Future Judge Ketanji Brown Jackson will be as threatened as Judge Amy Coney Barrett.
Conservatives and liberals should be able to agree that changes in the way judges operate are the immediate cause of increased rage in the court – even as they argue over who is to blame. Opponents of Roe lament the disrespect for the institution on the part of liberals and, in the case of Justice Kavanaugh, point to the emotionally charged protests that targeted him during his confirmation hearings.
For their part, Roe supporters blame conservative justices for breaking court standards as one of the triggers. They cite the storming of the US Capitol on January 6, 2021 as a precedent for political violence that conservative politicians have moderated and tolerated, and also note that anti-abortion radicals have been the ones who have used guns. Both parties are right.
National madness has consequences in a highly polarized country in which the Capitol can be stormed and would-be shooters cannot be tracked, let alone disarmed, due to the limitations of existing gun regulations.
In 2021, more than 4,500 threats and other inappropriate communications were made to federal judges, according to the head of the US Marshals Service. In 2020, a spiteful gunman raided the New Jersey home of federal judge Esther Salas, killing her son and seriously injuring her husband. Just last week in Wisconsin, a gunman with several politicians on his target list killed a retired judge who had convicted him years earlier.
Gone are the days when Supreme Court justices shunned the negativity that most public servants sometimes have to deal with – when they could walk the streets alone or with their families without attracting attention, positive or negative.
This luxury – innocence, if you will – has served the country. This has lowered the temperature even for the court’s high-profile decisions. Today’s feverish mood is unusual. But the consequences for the way judges live will be permanent.
Read more about the Supreme Court opinion from Bloomberg:
• American judges are more like politicians: Noah Feldman
• The Supreme Court has a bad surprise for companies: Noah Feldman
• Supreme Court leak investigation is self-defeating: Stephen L. Carter
This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.
More stories like this are available at bloomberg.com/opinion