Arizona Supreme Court Justice Clint Bolick is speaking out about what he calls “deeply disturbing” attacks on the judicial branch in this country. Those attacks, he says, are largely coming from the Trump administration.
The Arizona Republic first reported on Bolick’s comments to a legal organization called the Society for the Rule of Law, a right-of-center group. The justice then expanded on those comments, criticizing what he sees as threats to due process and judicial independence.
Justice Bolick joined The Show to talk more about this.
Full conversation
MARK BRODIE: What prompted you to speak out? I know that, you know judges and justices especially are often loathe to sort of speak out on issues that are even perceived as political.
CLINT BOLICK: Well, you know what? I got my training wheels last year during my own judicial retention election, when a number of folks, this time from the left, were challenging my colleague Justice (Kathryn Hackett) King and me for a decision with which they disagreed, and trying to remove us from office during the retention election.
And I argued that an independent judiciary requires that people judge judges based on their merit and their performance, not on the positions that they rule on. And then no sooner did Justice King and I get retained then a whole new episode began, this time from the right.
And the Trump administration has taken unprecedented — I wouldn’t say steps so much — but certainly has engaged in rhetoric that I have never heard before. And certain actions have been taken, such as the deputy chief of staff threatening to suspend habeas corpus — which dates back to the Magna Carta — if the courts don’t “do the right thing,” to use his words. Efforts to impeach judges over decisions that they have taken.
And I think judges really need to stand up for the independent judiciary. There’s no one that we can look to, that we can count on to defend the independent judiciary more aggressively than judges themselves.
BRODIE: Have you seen any changes as a result of this kind of rhetoric? Do you find that it’s having an impact on judges and maybe the way that they rule on cases?
BOLICK: Well, certainly. Fortunately the framers did build in a mechanism to prevent having federal judges look over their shoulders. And that is lifetime tenure. And that’s why impeachment threats are so concerning.
I certainly can’t point to a particular decision and say, “That judge ruled that way because he or she was nervous.” But it can’t help but have that impact to make you think twice about a ruling if it is going to have consequences for your profession.
BRODIE: What does it mean, do you think, if judges are looking over their shoulder and thinking about the fact that they might lose their job if they rule a way that a particular politician or political entity doesn’t like?
BOLICK: Well, it means, then, that the judiciary is in a position to become simply another political branch, an arm of the executive branch. And we see that in most countries around the world.
Mexico is the most recent country to essentially politicize its judiciary. It is now an entirely elected judiciary, and it is elected literally alongside the elections for the government. And the idea that that judiciary is going to be bold and independent is a laughable notion. And in fact, the government proposed this judicial reform to obtain a more compliant judiciary.
Here in the United States, it is a touchstone of of our, constitutional republic that we resolve our disputes not on the streets but in the courts of law, and that we can trust the courts by and large — with some exceptions, but certainly more than in most countries — to do the right thing, to rule in favor of David over Goliath when David deserves to win, to enforce the law and not to care who is in power.
BRODIE: There has been a lot of talk over the last several months about this idea of what happens if the administration — or really any administration — just ignores a court ruling. And it seems like we’ve seen maybe sort of baby steps in that direction in terms of maybe delaying or saying, “Well, we’re not sure if we can do this.”
What, to you, happens if, let’s say, the U.S. Supreme Court or the Arizona Supreme Court issues a ruling and the administration — either the president or the governor, whomever — says, “No, I don’t think so.”
BOLICK: Well, if that were to prevail — and I’m not sure what the courts could do about it, and the folks who are advocating this on the outside of the administration certainly recognize that. A guy named Mike Davis, who is very influential on judicial matters with the administration, said that we need to do whatever it takes to hold the sword of Damocles over the judiciary.
So I’m not sure exactly what the judiciary can do other than to resort to, to public opinion. And I think what we saw in the retention election here for myself and Justice King last year was a lot of people — we won retention despite a very strong campaign against us with nearly 60% of the vote. And to me, that was a very strong indication of a popular consensus in favor of an independent judiciary.
But the courts themselves are largely powerless. And it almost got worse. A provision in the “Big, Beautiful Bill” that passed the House would largely have taken away the court’s contempt power. That is the power to punish parties and lawyers who disobey court orders.
In the Senate version, it became a bond requirement for injunctions, which would have required, in many cases, either millions or in some instances billions of dollars in bonds before the courts could issue an injunction.
Amazingly, that got stripped out of the bill, not because senators said, “Oh, what are we doing here?” but because the Senate parliamentarian stripped it out of the bill. I was writing about that, and others were trying to draw attention to that.
But obviously, there were a lot of provisions in that bill that were controversial. And if it weren’t for the Senate parliamentarian, the courts could very well have lost a part of the very limited powers that they have to enforce their opinions.
