By Hon. Philip M. Pro (Ret.)
Exactly ten years ago, I published an article in the Communiqué titled Judicial Independence and the Rule of Law at Home and Abroad (Communiqué – August 2015). That commentary discussed my participation, over the prior 20 years, in international judicial conferences; in more than twenty countries, promoting the importance of an independent judiciary to the viability of the rule of law in a democracy. Little could I imagine, then, that a decade later I would be called upon to author another commentary on the serious threats we are witnessing today to the independence of our own federal judiciary, and the foundational principle of the rule of law which is the cornerstone of our constitutional republic.
On December 31, 2024, Chief Justice John Roberts dedicated his Year End Report on the Federal Judiciary to a discussion of the growing dangers to the independence of the Judicial Branch, posed by the alarming increase in hostile communications, intimidating threats, and acts of violence directed at federal judges in recent years. Noting that “violence, intimidation, and defiance directed at judges undermines our Republic,” he encouraged the three branches to work cooperatively and respectfully to preserve the independence of the judiciary and the rule of law. Based upon recent events, it does not appear that the Chief Justice’s message has been heeded.
For the past six months, the federal judiciary has faced an unprecedented barrage of inflammatory attacks—from public officials at the highest levels of the executive branch—in response to judicial decisions enjoining presidential executive orders, issued by the new administration, pending full litigation on the merits. These attacks range from disparaging personal criticisms of the judges presiding over the cases, to calls for retribution—including impeachment and threats to refuse compliance with court orders. Such attacks, by the executive branch, pose a serious threat to the independence of the federal judiciary and the rule of law. As a retired Article III judge, I consider it my duty to speak out on behalf of my active and senior judicial colleagues who cannot respond themselves.
Why? Because under Canon 3(A)(6) of the Code of Conduct for United States Judges, they must confine their public comments about the cases they adjudicate to matters addressed in open court and in the rulings they issue. While responsible criticism is not objectionable, judges do not, in my view, deserve the lamentable treatment from high-level elected and appointed officials they have recently been subjected to, simply for fulfilling their constitutional responsibilities.
Every day, judges are called upon to ensure that their courtrooms provide a forum in which cases are adjudicated fairly, guided by the “rule of law” principle: everyone, including those who govern, are subject to the impartial application of the laws derived from a democratic process.
Every day, judges are called upon to ensure that their courtrooms provide a forum in which cases are adjudicated fairly, guided by the “rule of law” principle: everyone, including those who govern, are subject to the impartial application of the laws derived from a democratic process. As with any human endeavor, our justice system is imperfect, and judges make mistakes. History has shown, however, that those mistakes can generally be corrected on appeal, and the judicial branch has most often functioned well in accord with its constitutional mandate for over 235 years.
Experience teaches that the rule of law cannot exist in a lawless society, or for that matter in one rife with corruption, or dependent on personal power or loyalty to an authoritarian figure. The marvel of the constitutional structure of our three branches of government is that they are co-equal and independent of each other, yet also dependent on each other through a mutual respect for the separation of powers and the checks and balances engrained in the Constitution.
To fulfill its mission—to render decisions in accord with the rule of law—judges must have decisional independence to adjudicate cases “without fear or favor,” and be free of undue influences; including those posed by external pressure, harassment, threats of retribution, and violence.
To fulfill its mission—to render decisions in accord with the rule of law—judges must have decisional independence to adjudicate cases “without fear or favor,” and be free of undue influences, including those posed by external pressure, harassment, threats of retribution, and violence. Recent conduct by some in the executive branch threatens to upset that equilibrium.
According to the Federal Register, 163 presidential executive orders were issued between January 20, 2025, and June 16, 2025, many involving complex constitutional and policy issues. Several have been challenged in lawsuits seeking injunctive relief on a range of issues including the constitutionality of birthright citizenship; the application of the Alien Enemies Act of 1798; and the imposition of penalties on lawyers and law firms representing interests adverse to policies of the executive branch, among others.
I recognize that many hold strong and divergent views on the merits of many of the policies addressed by these executive orders. These disagreements have spawned dozens of lawsuits that will be determined in the federal courts after all parties have the opportunity to exhaust their due process and appellate rights through the justice system. I offer no opinion on any of those policies and trust we can all agree that our independent judicial system provides the appropriate forum in which to resolve constitutional and legal disputes, according to the law and without inappropriate external pressure to influence the outcome.
Criticism of judicial rulings by the public, the press, or governmental officials is not unusual and does not, of its own, upset that historical balance between the branches. However, the nature of recent illegitimate criticisms and threats of retaliation directed at the federal judiciary has changed.
Whether by design, ignorance, or both, inflammatory rhetoric from high-level executive branch officials, denigrating the rulings of federal judges, and often accompanied by disparaging personal attacks against the character of the individual judges who issued them, threatens to erode the public’s confidence in the judicial branch and the rule of law it serves to protect.
Let me be clear—judicial independence does not mean that judges should be immune or even shielded from criticism. Indeed, criticism of judges, just as criticism of any public official, is protected under the Constitution and is essential to a healthy political debate in any democracy. However, criticism and threats of the kind we are witnessing today from the top levels of the executive branch have the potential to harass and intimidate judges, and they raise legitimate concerns for the safety of judges and their families. This should be firmly rebuked.
Acrimonious attacks shouted continually from the “Bully Pulpit” of high political office—in which individual judges are characterized as: “radical left lunatics”; “monsters who want our country to go to hell”; “illegitimate obstacles to safety and democracy”; a “handful of communist, radical-left judges”; “enemies of democracy”; “out of control judges”; and also calling for their impeachment—serve no legitimate governmental purpose. Instead, they tend to erode public confidence in the judicial branch and weaken public faith in the rule of law.
Such criticisms are amplified significantly when spread via social media platforms to an audience which sometimes includes individuals ill–equipped to distinguish between political rhetoric versus a call to action. Combined with growing incidents of “doxing” and “swatting,” and anonymous threats of violence, they rise to the level of attempts to intimidate judges and pose a potential danger to the operation of the judicial branch.
Most reading this commentary are familiar with the well-publicized rash of over 100 pizzas sent anonymously to the residences of judges who have enjoined some of the executive branch orders. Reportedly, at least 20 such pizzas were ordered under the name of “Daniel Anderl,” the 20-year-old son of U.S District Judge Esther Salas. Daniel was murdered, when he answered the door of the family home, by a disgruntled lawyer posing as a delivery driver, who also shot Judge Salas’ husband before killing himself. What purpose is served by sending pizzas to the homes of judges, other than to intimidate them by showing that “we know where you and your family members live?” It is unclear whether those anonymously sending pizzas actually intended to do violence to the judges receiving them, but I submit that the criticisms of the judiciary coming from high officials in the executive branch give license to motivate some to engage in such irresponsible action.
As the Chief Justice concluded in his report, “Our political system and economic strength depend on the rule of law. The rule of law depends, in turn, on Article III of the Constitution and judges and justices appointed and confirmed under it.” Thoughtful criticism serves a useful purpose, but threats, intimidation, defiance, and violent acts directed at judges for doing their job, are never justified and undermine our republic.
Thoughtful criticism serves a useful purpose, but threats, intimidation, defiance, and violent acts directed at judges for doing their job, are never justified and undermine our republic.
I offer no easy solution to the problems outlined in this commentary—I wish I could. But as lawyers, we can all do something. And if we can do something about this disturbing threat to the independence of the federal judiciary and the rule of law, we should. I encourage all members of the bar to reflect on how they can contribute to this effort and offer the following for your consideration.
Clearly, our society needs a refresher in civic education. As lawyers, we are well equipped to contribute to that effort. I urge you to become involved in civic education opportunities offered through the Nevada Bar Association, Clark County Bar, local school districts, and non-profit organizations. Since 1987, I have participated in the “We the People” program founded by the Center for Civic Education. We the People, and other civic education programs, currently operate under the auspices of the Nevada Center for Civic Engagement (NVCCE). The NVCCE offers a wonderful example of what Civic Education programs can accomplish. https://nvcce.org/.
As lawyers, you are often considered leaders in your own community or mini communities. When you speak out in your professional or social organizations, or even among non-lawyer friends, what you say about the importance of judicial independence and the rule of law makes a difference. I urge you all to speak out and call upon public officials and others to discourage criticisms and threats of the type described in this commentary. Among the many resources which you might find helpful is Duke Law School’s Bolch Judicial Institute’s Guide to Defending the Judiciary, https://judicialstudies.duke.edu/defending-the-judiciary/. The Bolch Guide contains links to several resources for lawyers and bar organizations which you may find useful.
I also recommend the new and evolving website of the recently formed Article III Judges Coalition, https://keepourrepublic.org/article-III-coalition/. The Article III Coalition is a non-partisan organization, comprised of more than forty retired United States district and circuit judges, including me, who have come together to “support, preserve and defend judicial independence as the foundation of the rule of law and of our democracy.” I encourage you to consult the coalition’s website, as it develops, for links to additional resources you also may find helpful.
I close this commentary with a reminder that you, as members of the bar, play an integral role in ensuring the rule of law under our Constitution. We share the obligation to defend it.
About the author
A member of the Nevada Bar since 1973, Judge Philip M. Pro served nearly 35 years on the bench: as United States Magistrate Judge, from October 1980 through July 1987; and as United States District Judge, from 1987 until his retirement in 2015. He currently serves as an arbitrator with JAMS.
About the article
This article was originally published in the Communiqué (Aug. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-aug-2025/. The printed magazine will be mailed to CCBA members in the last week of July 2025.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
© 2025 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.