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Cast your mind back to the American south in the late 1950s, when federal trial court judges were called upon to do a herculean job – enforce the supreme court’s titanic decision in Brown v Board of Education, which struck down the “separate but equal” school segregation regime.
Bear with me for a brief history lesson, because it resonates today.
Instead of insisting that the schools be immediately integrated, the supreme court decreed that its decision should be enforced with “all deliberate speed”. In effect, the court punted, leaving the interpretation of this hard-to-parse mandate in the hands of lower federal court judges.
Those judges stood between a transformative constitutional command and organized political resistance. Jim Crow segregation had been the law for more than half a century. It was a way of life, and for many southern whites, integration posed an existential threat.
It took bravery to stand up against passionate, sometimes violent, Dixie “massive resistance”. Judges who handed down desegregation rulings became outcasts in their communities. Local newspapers labeled them “race traitors”. Ku Klux Klan chapters circulated their addresses. Death threats were common. But in the face of those pressures, they upheld the rule of law.
Fast forward to today, with a shout-out to the gutsiness of federal district court judges who have stood up to the president and defended the constitution. At a time when we are bombarded by the ceaselessly grim news from Washington – the loss after loss for democracy – these judges are doing their job quietly and effectively.
District court judges have overturned or blocked executive orders ending birthright citizenship, punishing law firms and universities, eviscerating election laws, slashing the federal workforce and freezing funds. Upwards of 650 lawsuits challenging executive orders have been brought – 10 times more than in the first year of the Biden presidency – and plaintiffs have won more than twice as often as the administration.
The jurists are losing their patience with the Trump administration, which many have criticized for noncompliance. They have rebuked the government in uncharacteristically sharp language – “deliberately ignorant”, “chilling harm of blizzard proportion”, “an assault on constitutional rights”. In at least 95 cases since August, the New York Times reports, judges have demanded that officials explain why they should not be held in civil contempt, a rarely-invoked penalty designed to force aimed at forcing compliance with the law.
Immigration has been at the center of this battle between law and disorder.
“The court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt – again and again and again – to force the United States government to comply with court orders,” Patrick Schiltz, a federal district court judge in Minneapolis, declared.
Schiltz threatened to hold government officials in criminal contempt – that means jail time. He is hardly a firebrand – with a reputation as a conservative, he was appointed to the bench by George W Bush. Overall, political affiliation has played no part in these cases. Judges appointed by other Republican presidents, from Reagan to Trump, have been similarly scathing in their opinions overturning Trump’s executive orders.
In standing up to the president, these judges are putting the safety of themselves and their families at risk.
Judges have been doxxed, with unwanted pizzas sent to their homes in the name of the son of a murdered judge – the message: we know where you live. They have been Swat-ed with fake calls that led police to storm their houses. They have been inundated with threatening phone calls.
One judge received six credible death threats. “Someone was on the dark web searching for my home address because – this is a quote – he wanted Smith & Wesson [gun manufacturers] to pay me a visit.”
Trump has stoked the flames, stirring up the Maga faithful by vowing vengeance against judges who rule against him.
The president’s justice department filed a ludicrous judicial misconduct complaint against a judge who refused to allow Venezuelan immigrants to be shipped to the El Salvador hellhole prison without any sort of hearing. About another judge whose rulings displeased him, he declared: “This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!! … [He’s a] Radical Left Lunatic.”
These district court decisions are not, of course, the final word. The administration can appeal to the court of appeals, where it has been more likely to prevail, and ultimately to the supreme court, whose Republican appointees have voted, often as a bloc, to uphold Trump’s actions.
Nonetheless, at a moment when the guardrails of democracy have proven to be made of papier mache – when, day after day, the president displays his contempt for democracy and Congress takes a 14-month siesta – these judges are the rare exception. They are doing the work that the constitution demands, and like their counterparts in the Brown v Board of Education era, they are preserving the rule of law, often at risk to themselves and their families. In these dark days, that’s cause for celebration.
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David Kirp is professor emeritus at the University of California, Berkeley and a frequent contributor to the Guardian
