Federal Judges Are Under Fire. How a Group of Them Are Fighting Back.

The ‘Authority of Law’ statue outside the entrance to the U.S. Supreme Court building in Washington. (Al Drago/Bloomberg)

Five years ago this month, an assailant posing as a deliveryman came to the New Jersey home of Federal Judge Esther Salas and shot and killed her son, Daniel Anderl (it happened to be his 20th birthday) and wounded her husband. The primary suspect was found dead of a self-inflicted gunshot wound a day later. A self-described anti-feminist, he had appeared before Salas and written disparagingly about her.

As if that wasn’t horrific enough, the murderous attack has become something of a touchstone to those apparently opposed to judicial authority. Since then, including this year, dozens of judges have received unsolicited pizza deliveries, some with the recipient named “Daniel Anderl” as a signal that these judges are being scrutinized and their whereabouts known.

Now a bipartisan group of 40-plus retired federal judges has formed an organization aimed at addressing what they see as an increasingly fraught legal environment. Called the Article III Coalition, the group is named after the section of the U.S. Constitution which establishes the judicial branch of the federal government—including the U.S. Supreme Court, the U.S. Court of Appeals, and U.S. district courts.

The coalition has judges appointed by Presidents Ronald Reagan, George H.W. Bush, and George W. Bush, as well as Jimmy Carter, Bill Clinton, and Barack Obama, and is looking to fortify the federal court system by emphasizing the importance of the Constitution, the rule of law, the role of the judiciary and its independence, and the separation of powers.

Barron’s spoke with three of the jurists: Allyson K. Duncan, John E. Jones III, and Paul R. Michel—each with their own impressive list of accomplishments—in a group interview earlier this week.

“I was a judge for 22 years on an appellate court and this is the most important work I’ve ever done,” says Michel, a Reagan appointee who served on the U.S. Court of Appeals for the Federal Circuit from 1988 until retiring in 2010. “We’re all old people who are no longer wearing robes and deciding cases, but we see a threat to the country that is unimaginably huge. I was one of the Watergate prosecutors, and I think what the country is facing now is way more dangerous than whether President Nixon was going to defy the Supreme Court when it ordered the tapes be turned over.

“We’ve been through stress before, but I think the circumstances are so different and so intense now that we’re going to need to get our act together as a nation very quickly and very firmly and reunite, or we’re going to end up in an analog of the Civil War era.”

Attacks and threats against federal judges have increased markedly recently, including an assassination attempt on Supreme Court Justice Brett Kavanaugh three years ago. In his 2024 year-end report, Chief Justice John Roberts spoke to this problem, writing, “In the past five years alone, the Marshals [U.S. Marshals Service] report that they have investigated more than 1,000 serious threats against federal judges.” According to Judge Salas, there were more than 400 threats against nearly 300 federal judges from the start of October 2024 to mid-June of this year. (Overall, there are some 1,700 federal judges in the U.S.)

While the threats and violence pose a clear and present danger, the former judges are just as concerned with what they see as the erosion of the separation of powers and a weakening of the federal judiciary itself.

“I think all of us are political realists,” says Jones, who was appointed to the federal bench by President George W. Bush in July 2002 and served until August 2021. (He also worked for Tom Ridge, former director of Homeland Security and Republican governor of Pennsylvania.) “We understand the tenor of the times, but I think there have been few times in history where the three branches of government are as out of balance as they are right now. I think that’s caused a major problem, in the sense that I think unquestionably, you have a very pliant majority in Congress and a dominant executive who sees that role as the so-called unitary executive. Things are falling on the shoulders of the judiciary that maybe in another time would be taken up by Congress.”

(Jones, now the president of Dickinson College, joked, “First I was a federal judge. Now I’m a college president. Next thing I’m going to take up is cliff diving.”)

Michel adds that “severe personal attacks are coming from very high officials, including the attorney general, the White House spokesman, sometimes the president himself, and multiple members of Congress.”

Duncan, though she too expresses deep concerns about the legal environment, says she “would prefer not to focus too much on the administration, because there is naturally going to be tension. The appointed branches of government are always going to be somewhat at odds with the elected branches of government, but we have to sort of bump along and stay in our lanes and be mutually respectful of each other.”

The Article III Coalition notes that sitting judges are generally prohibited by a code of conduct from speaking out, but that retired judges aren’t similarly constrained.

“Every action the President and his administration have taken is legal, and the historic number of legal victories in district courts and the Supreme Court underscores this fact,” a White House spokesman said via email. “Any sanctimonious former career judge expressing faux outrage over the President’s policies while sitting idly by during the rank weaponization by the previous administration has no grounds to stand on.”

The three judges are quick to suggest that a weakened federal judiciary is highly detrimental to businesses and markets. “Every day in the federal courts across the country, hundreds and hundreds of judges are deciding business disputes, and they’re doing it in a way that is responsive to two parties who seek relief,” says Jones. “If you begin to tear at the integrity of the federal judiciary and people’s faith and how judges do their work, then you lose something that undergirds our capitalist system—which is that the judiciary creates even playing field rules without fear or favor.”

Duncan says that federal courts are particularly important in this regard: “Usually, the first thing [business leaders] do if sued is to try to get out of state court and into federal court for several reasons—the quality of the judges, the consistency of the rulings, the fact that you have a fairly good sense of how to bring your case and you have the knowledge that the judge can rule without an eye to the next election, for instance. Businesses want stability and predictability.”

Jones adds that this stability confers a competitive advantage to the U.S. “If we tear down the third branch and we remove people’s confidence in what judges do, then you start to unwind some of the reasons that people want to do business,” he said. “I think our system in the United States has been time-tested, and it has done well.”

Duncan, a member of the International Association of Judges, has deep experience in the global reputation of the U.S. when it comes to jurisprudence. The association “monitors the status of judicial independence and the rule of law around the world,” he said. “We write letters to world leaders and say, ‘Please accord judges the rights to which they are constitutionally protected.’”

In April the association wrote such a letter to the U.S., calling on “U.S. officials to stop issuing inflammatory statements against judges. Disagreement with court decisions should be pursued through legal channels, not through public attacks.”

The letter to the U.S. was the first in the organization’s 67-year history. “The last time I wrote such a letter was to the president of Yemen” in 2002, says Duncan. “The notion that the association is now writing about the United States brought home to me how serious the issue is when we are regarded [that way] around the world.”

As a tangible example of the erosion of the rule of law, Duncan and Jones point out that in arbitration in Asia, parties often used to pick Hong Kong to receive a fair legal opinion. But as judicial independence began to be encroached upon there, parties shifted to Singapore because they wanted to ensure that judges could rule independently. The two former judges warned that the same could now be occurring with the U.S., meaning it would become a less-favored venue for similar reasons.

But what about those who might say, “U.S. markets and our economy are fine. Why should we care about any of this?”

“I would point out forcefully that I’m an African-American born into enforced segregation in the American South,” responds George W. Bush appointee Duncan, a Duke University School of Law graduate who served on the university’s board of trustees. “Were it not for the courage of federal judges who faced popular populist sentiment in the opposite direction, our history would have been different. When the Supreme Court decided Brown v. Board of Education, Eisenhower didn’t like it one bit, but he said, ‘I respect the Supreme Court,’ and that’s what we’re asking for.”

Michel took the case back to money and markets. “I think the reason our economy works is that there are agreed-on ground rules,” he says. “When a business leader of a company has a contract with another company, there’s an assumption that the contract will be honored. People trust in those arrangements. In the cases where there isn’t fulfillment of the promises of a contract, courts are ready to provide enforcement.

“The fact that courts are known to be standing there deters people from not honoring contracts. So really, business arrangements depend on the credibility of the courts ultimately to step in and make sure the rules are followed. If not, economic activity will come to a standstill, because no one will be able to trust that any arrangement or promise or relationship they develop will be fulfilled as contemplated.”

While the jury may still be out on the efficacy of the work of the Article III Coalition, the importance of their efforts is undeniable.

Write to Andy Serwer at andy.serwer@barrons.com