One of the defining characteristics of our free republic is our strong adherence to the rule of law. President John F. Kennedy insightfully observed that “Our nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny.” The Founders wrote down and ratified the Constitution to ensure that all would be subject to it, and created a judicial branch to protect it. The judiciary is the guardian of the rule of law and the Constitution. “A dedicated bench and a militant bar are the natural leaders” to preserving our liberties, Chief Justice Earl Warren remarked. “Without an independent judiciary there can be no freedom.”
Unfortunately, the ability of judges to fulfill that sacred role is being jeopardized by implicit as well as overt threats to judges. Most recently, Oakland Circuit Court Judge Karen McDonald has been subjected to vicious and alarming threats via social media. These threats have arisen simply because Judge McDonald was doing her job. Her decisions in connection with family court matters involving vaccinations may not be universally approved, but they certainly do not warrant death threats.
Americans have a proud heritage of protecting the rights of free speech and free press, but no one has the right to threaten the life and safety of a judge for any reason – most especially because of judicial rulings. The power to do good is also the power to do evil. Social media has tremendous upsides. However, it can also lead to grave abuses by those who hide behind anonymity, misinformation, and hidden agendas. This can lead to a toxic stew which can lead to real life poisonous consequences.
Judges must make rulings – both popular and unpopular – based on the law, not their personal views or public opinion. The essence of judicial independence is the ability of judges to make rulings which are unpopular at the time. Judicial rulings must be made based on the law created by the people or legislature, as applied to the facts before the judge and jury. We do not conduct opinion polls to determine what the law is in any given case. In fact, a judge often must make rulings which may be unpopular because the law in fact requires it.
In addition, complex legal proceedings can rarely be explained adequately in a headline or in 140 characters. Judicial decisions often must account for several different streams of law (such as differing statutory provisions, court rules, common law, and constitutional provisions). The facts before the judge or jury are often very complicated and nuanced. No wonder then that the media may on occasion leave out vital facts or law which undergird any particular judge’s decisions. Nor is it surprising that social media comments and postings might be based on inaccurate, incomplete, biased, or false information. I have on occasion read newspaper articles on my decisions which hardly reflect the legal proceedings over which I have presided.
In light of the importance of an independent judiciary to protecting our Constitution and liberty, we must do all that we can to protect the integrity of the judicial decision making process. No one claims that judges are infallible. Decisions of judges should be challenged through appeal, or in the case of the Michigan judiciary, in elections – not with death threats. Threats to judges are threats to justice, freedom and our way of life.
The media and general public must be cautious in reacting to judicial decisions. Lawmakers should proactively enact policies to defend judicial independence. Law enforcement must be vigilant in protecting the safety of our judges. If not, the rule of law will degenerate into the rule of the mob and the assassin. A fate too terrible to accept.
Hon. Michael Warren is an Oakland County Circuit Court Judge, co-founder of Patriot Week (www.patriotweek.org), and author of America’s Survival Guide (www.americassurvivalguide.com).