Remember the early days of the COVID-19 pandemic and all the attention that was focused on so-called “front-line workers”?
They risked their health and safety to provide groceries, deliver health care and keep the world working while the rest of us sheltered in place. In cities like New York, residents would signal their gratitude by cheering and banging pots and pans at 7 p.m. every night.
Today, there is a new category of front-line workers who, alas, are not receiving such acclaim. They are the judges who staff the nation’s 94 federal district courts and risk their safety and reputations to stand up to the Trump administration.
Throughout American history, being a federal district judge has generally been a cushy gig, as well as a reward for supporting a winning presidential candidate. But in the Trump era, all that has changed.
The president regularly takes those judges to task in the harshest terms if they rule against him. And all over the country, federal district judges have received bomb threats and other alarming reprisals for their rulings.
Comparing them to the COVID-19 front-line workers is not just my flight of fancy. Supreme Court Justice Brett Kavanaugh, speaking at a judicial conference in Memphis, Tenn., this month, described federal district court judges “who operate alone” as serving on “the front lines of American justice.” Like the grateful Americans of 2020, the justice thanked them for the work they do to “preserve and protect the Constitution and the rule of law of the United States.”
However, this is a far cry from what the justice and his conservative colleagues have been saying about federal district judges from the bench, when their decisions are crucial to the future of constitutional democracy in this country. There, Kavanaugh sings a very different tune.
Twice over the summer, he joined opinions of the court that delivered stinging rebukes to the very people he lionized in Memphis. On Aug. 21, in a case that overturned a federal district judge’s order stopping the administration from freezing National Institutes of Health Research grants, Kavanaugh joined Justice Neil Gorsuch in castigating the judge for acting in a lawless way and failing to “respect ‘the hierarchy of the federal court system created by the Constitution and Congress.’”
Two months earlier, he joined in a decision that stripped the authority to grant “universal injunctions” — orders binding on the entire nation — from federal district courts. He agreed with Justice Amy Comey Barrett, who wrote that “When a court (a federal district court) concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
Kavanaugh wrote separately to chastise district court judges for not following “proper procedures” when they issue universal injunctions.
The rancor directed at those front-line workers since President Trump came onto the political scene is reminiscent of an earlier era, when federal district judges were on the leading edge of efforts to dismantle Jim Crow and racial segregation. Especially across the American South, these judges were caught in the crosshairs of that era’s most explosive legal and political conflict.
Judges who sought to faithfully enforce the Supreme Court’s landmark decision in Brown v. Board of Education, which ordered the desegregation of public schools, were treated as traitors. They were targeted by hate groups, received bomb threats and vilified by politicians who did not like their decisions. In the case of Judge Frank Johnson of Alabama, in addition to the threats and harassment he faced, ardent segregationist Gov. George Wallace “demanded Johnson’s impeachment, smeared him as a traitor and a mentally unbalanced tyrant, and said he needed ‘a barbed-wire enema.’”
Sound familiar?
But in those days, federal district judges could generally rely on their colleagues on the highest court in the land. Supreme Court justices defended their rulings and sometimes even praised their courage. As Kavanaugh’s recent votes on the Supreme Court make clear, that is no longer the case.
There are surely more tests to come of the justice’s willingness to turn his luncheon speech praise for judges on “the front lines of American justice” into action. Almost every day, or so it seems, those judges try to rein in the Trump administration, whether in its dealings with universities or its deployment of the military. So far, the Supreme Court does not have a great track record in having their back.
In Memphis, Kavanaugh reminisced about his mother, who was a state-court judge. He told his audience that she “had often impressed on him how difficult the job of a trial-court judge could be.”
“It’s kind of like having the referee on the field,” he explained, “and then we’re sitting up in the replay booth, dissecting every frame of the replay. … Respect for the role of the trial judge as a single person who has to make quick decisions is something that I saw firsthand.”
It is too bad that Kavanaugh is now so reluctant to display that respect when it counts.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
