It is a dangerous time to be a judge in America. Retired Wisconsin judge John Roemer was killed at his home in June 2022. That same month, US Supreme Court Justice Brett Kavanaugh narrowly avoided a kidnapping and possible assassination attempt. These incidents follow in the wake of an assassination attempt on U.S. District Court Judge Esther Salas, whose son was killed and husband injured in an attack at her home in July 2020.

The perpetrators of these attacks were individuals who were disgruntled with court decisions made by these judges. While violence towards members of the American judiciary is not a new phenomenon, it has been getting increasingly dangerous. A survey of state judges in Pennsylvania in 2001 showed 23% of judges had received threatening communications and there had been 19 physical assaults. This increased in 2009 to around 58% of judges experiencing work-related violence or threats. The U.S. Marshals, who are responsible for the protection of federal judges and the courts, identified 4,500 threats toward the federal judiciary in 2021, which is an increase of 6% from 2020. There are provisions for the security of judges in the U.S. Justice Department budget, and the recent attack on Judge Salas’s family has resulted in a legislation change, in which personal information of members of the judiciary and their families will be protected.

Australia has not experienced the same level of violence toward its judiciary in recent years, and security measures reflect this. However, in 2020 Australia was reminded of its violent history when the perpetrator of the Family Court bombings between 1980 and 1985 was sentenced after a thirty-year investigation. The attacks resulted in numerous casualties and the deaths of three people, including Justice Opas and the wife of Justice Watson. A 2021 study found 61% of the judges surveyed had experienced threats toward themselves and their families, with four reported instances of such threats being carried out. Despite these concerns, there is very limited information available regarding the protection available to judges in Australia. Several judges have even pointed out the lack of security for themselves, particularly when compared to the many security procedures in place for the Australian Federal Police and Corrective Services. In 2016, South Australian judges were able to obtain $1,000 of funding each year for home security following a number of attempted attacks on judges. However, it is unclear whether this funding is still available and whether any other states provide similar funds for security. The Court Security Act (NSW) 2005 does provide for the security of the courts, however it is clear that judges continue to be highly concerned for the safety of themselves and their families.

The result of violence directed toward judges has had an impact. Judges share the conception that violence is inevitable, and a study on Australian judges concluded that the “exposure to high levels of threat…correlated clearly with poor mental health outcomes.” Another study found around 30% of the judges surveyed likely qualified for a diagnosis of PTSD as a result of their work and that there is a clear “stress problem” within the Australian judiciary. Some are worried about the result safety concerns may have on the rule of law.

The rule of law is a foundational principle, safeguarding the rights of individuals and justice. In essence, the rule of law means equality under the law. All are treated the same, whether you are a private citizen, a business, a large corporation or the government. Judges are expected to decide cases on their individual merits, “without fear or favour.” Influences of any kind should not impact the decision making of a judge, as courts are expected to maintain “transparency and independence.” The security of judges is usually considered in terms security of tenure and independence from political interreference, with measures taken to lessen concerns that threats of removal, reduced renumeration or political pressure will influence their decisions. However, the judicial oath clearly states judges should make decisions without being afraid, and this refers to more than just fear of criticism or finances. When judges feel they are being threatened as a result of their decisions, there is the potential for them to change their decision or tailor their judgements to prevent attacks on themselves or their families.

In a 2009 study, 17% of the judges surveyed felt stress had at least moderately compromised their judicial responsibilities, with eight judges stating they had been unable to remain impartial and their decisions had been compromised as a result of safety concerns. The study found that fear of retribution has the ability to impact the decisions of both judges and jurors, with safety concerns needing to be addressed to protect the integrity of the American justice system. These results were mirrored in the recent study of judges in New South Wales, which stated, “Judicial officers’ traumatic stress is particularly significant if it impacts on their role in administering justice both in terms of individual litigants, and also in terms of public confidence in the justice system.”

In his end-of-year report, U.S. Supreme Court Chief Justice Roberts also highlighted the important link between the need for judges to feel safe and the proper administration of justice. After recounting the threats issued toward Judge Davies and his wife in the late 1950s after Davies’ order to desegregate Central High School in Little Rock, Arkansas, Roberts stated that the “judicial system cannot and should not live in fear.” He stated that the safety of judges must be assured and compared justice by the rule of law with justice through mob mentality.

As extremism rises, technology improves and the divide between the left and right grows, judicial independence and impartiality continues to be of increasing importance. As such, judges must be afforded assurances that they and their families will be protected, so that fear of retribution will not influences their decisions and the administration of justice.

Sophia Richards is a fourth-year law student at the University of Newcastle, Australia.

Suggested citation: Sophia Richards, Protecting Judges to Protect the Rule of Law, JURIST – Student Commentary, January 13, 2023, https://www.jurist.org/commentary/2023/01/sophia-richards-judge-safety-rule-of-law/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org