In the face of increased federal attacks against judges, former Supreme Court Justice Anthony Kennedy has a stark warning for the American public about the importance of the judiciary:
“Democracy is at risk. Freedom is at risk,” he told attendees of a webinar Thursday.
“Democracy doesn’t live on automatic pilot. You don’t take a DNA test to see if you believe in freedom,” he added. “Freedom and democracy are taught, and teaching is a conscious act, and that’s what our judges do.”
Kennedy delivered the remarks during the latest edition of Speak Up for Justice, a nonpartisan effort and virtual forum to advocate for upholding and protecting the authority of the judiciary. Joined by other American judges as well as judges from Poland, South Africa and Venezuela, Kennedy — who retired from the bench during the first Trump presidency in 2018 — cautioned that the political polarization and erosion of the judiciary’s integrity pose a threat to freedom and democracy in the United States.
“One of the great threats to judicial independence is not hostility but indifference,” he said adding: “You can blame the press in part for not focusing on these things, but the public must do so as well. We can’t be indifferent.”
His call to action came alongside his urging for Americans to pay greater attention to the threats to the judicial systems around the world. He admonished the lack of understanding that people globally have of the importance of the judiciary and admonished what he called the “east-west axis” in the U.S. that privileges news from Western countries over current events from regions like South America.
Kennedy’s argument followed the remarks of Venezuelan Judge Eleazar Saldivia, who underscored the erosion of respect for the rule of law in Venezuela in the last 30 years. He told the story of the Hugo Chávez-led persecution of Judge Maria Afiuni, who was jailed in 2009, subjected to abuse while in custody, released on parole in 2013 and sentenced to five years in prison in 2019 for ruling that the law required her to release a prisoner on bail.
We need your help to stay independent
Saldivia also spoke of his experience fleeing the South American country after facing harassment and intimidation in 2014 from then-Anzoátegui state Gov. Aristóbulo Istúriz Almeida and other officials after Saldivia released a student protester who was unlawfully arrested and ordered an investigation against high-ranking officers for the death of detainees. In his case, he not only lost the backing of the state but of the chief justice of his court, he said.
“What happened in Venezuela was a deliberate strategy to silence independent voices, politicize appointment and intimidate the judiciary into submission. The destruction of the judicial independence was slow and calculated, achieved not through military forces, but through laws, decrees, executive orders and court that no longer serve the people of Venezuela,” Saldivia said, warning that what happened in his home country “can happen anywhere.”
“Democracy doesn’t die overnight,” he added. “It begins with silence, inside courtrooms, behind closed doors and within the minds of those who know better but say nothing.”
South African Judge Richard Goldstone, whose rulings helped end Apartheid, emphasized that the Trump administration has already begun laying the groundwork for the threat to the judiciary in the U.S.
Start your day with essential news from Salon.
Sign up for our free morning newsletter, Crash Course.
In its latest escalation, President Donald Trump’s Justice Department on Tuesday sued 15 district court judges in Maryland over an order blocking the immediate deportation of immigrants who are challenging their removals.
Judge Esther Salas, a U.S. district court judge in New Jersey whose son was killed in a targeted act of political violence in 2020, also told the audience that the number of threats against judges so far this year has jumped to 408 threats from the 197 threats against judges between March and May from data she shared with the Washington Post in May.
Earlier this year, Trump authorized executive actions targeting Big Law firms that served clients who challenged his interests. The FBI also arrested a Wisconsin judge who was alleged to have assisted an immigrant in her court flee Immigration and Customs Enforcement, while the Justice Department stalled for weeks in complying with court orders to facilitate the return of a wrongly deported Salvadoran man to the U.S.
In contrast — and ironically — Goldstone noted during the event, “the oppressive and racist apartheid government respected the independence of its judges.”
“In too many democracies today, there is a decline in respect for the rule of law and an increase in right-wing populism and undermining of judicial independence,” Goldstone said, explicitly identifying the U.S. as among that troubled group.
But Kennedy also closed his remarks on a hopeful note for the future of the nation, referencing the ceasefire in the Middle East and urging viewers to uphold peace alongside the country’s principles.
“Peace is what gives us the opportunity to make democracy stronger, to make freedom more attainable, to make freedom greater for ourselves and the rest of the world,” he said. “We must always say, ‘No,’ to tyranny and, ‘Yes,’ to truth.”
