The Washington PostDemocracy Dies in Darkness

Opinion The courts are fighting back. It’s about time.

Chief Justice John G. Roberts Jr. in 2016. (Evan Vucci/AP)

Along with a free press, the independent judiciary is one of the few remaining brakes on authoritarian and reckless politicians. This week we saw confirmation that the judiciary takes its job seriously.

Senate Majority Leader Charles E. Schumer (D-N.Y.) made a ludicrously inappropriate threat aimed at two Supreme Court justices. “I want to tell you, Gorsuch. I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions," he said at an abortion rights rally on Wednesday. Chief Justice John G. Roberts Jr., who previously admonished President Trump for saying there are “Obama judges” who rule against him, issued a stern rebuke: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.” Schumer, after trying to explain away his statement, was forced to retract his words.

Some Democrats did speak out, but not enough. Republicans who have let Trump’s numerous attacks on the judiciary go unrebutted were predictably overwrought. What matters here, however, is that the Supreme Court is unwilling to remain silent in the face of bullying from elected leaders. Given the flow of verbal assaults against judges emanating from the Oval Office, the chief justice might need to pick the right moment when responding to Trump’s provocations, but Roberts has nonetheless made his point.

Meanwhile, in another court, a federal judge took on the administration’s baldfaced lies and propensity to misrepresent facts to the public. The Post reports:

U.S. District Judge Reggie Walton, overseeing a lawsuit brought by EPIC, a watchdog group, and BuzzFeed News, said he saw serious discrepancies between [Attorney General William P.] Barr’s public statements about Mueller’s findings and the public, partially redacted version of that report detailing the special counsel’s investigation of Russian interference in the 2016 election.
Because of those discrepancies, Walton ruled, the judge would conduct an independent review of Mueller’s full report to see whether the Justice Department’s redactions were appropriate.

The judge’s language was extraordinarily blunt. “In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be ‘subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests’ cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report.” Has a federal court ever accused an attorney general of lying like this before?

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State bar disciplinary authorities should take their cue and begin to investigate and discipline attorneys who violate their oaths of office. In the case of the census, when Roberts essentially found that the administration had provided a false reason for including the citizenship question, the bar should have followed up to investigate each attorney involved in making false arguments to courts.

We also recently witnessed U.S. District Judge Amy Berman Jackson admonish Trump associate Roger Stone for intimating that he was the victim of a “deep state" plot. She rebuked the arguments that Trump and his cultists had advanced, claiming Stone was being persecuted for his political beliefs. She eviscerated Trump’s arguments that the jury forewoman had been engaged in misconduct. And she repudiated the notion that truth does not matter. (”The truth still exists. The truth still matters,” she said from the bench. “Roger Stone’s insistence that it doesn’t, his belligerence, his pride in his own lies are a threat to our most fundamental institutions, to the very foundation of our democracy.”)

Again, in the extraordinary sequence of events in which the Justice Department flip-flopped on its sentencing recommendation for Stone after Trump’s outburst on Twitter, there must be consequences for the lawyers involved, up to and including the attorney general. The bar must step up to the plate.

Federal judges can make a meaningful contribution to preserving the rule of law from attacks from either the right or left and from prosecutorial misconduct. Indeed, they have an obligation to do so. They can take additional steps, including holding counsel in contempt and ruling on motions to apply sanctions for frivolous motions and arguments. While the attacks on the courts are dismaying, we should be relieved that the courts are fighting back. It is about time.

Read more:

Greg Sargent: A judge just brutally rebuked William Barr. Democrats must act.

George T. Conway III: Why Schumer’s apology about his Supreme Court remarks isn’t enough

Marc A. Thiessen: What Schumer really meant when he told Kavanaugh and Gorsuch ‘you won’t know what hit you’

Ruth Marcus: John Roberts was right to castigate Chuck Schumer

George T. Conway III: Trump made a baseless attack on two Supreme Court justices. Here’s why he did it.

Jennifer Rubin: Roger Stone’s sentencing shows what the ‘rule of law’ is all about