Last week, the Federalist Society’s annual convention gave a who’s who of the conservative legal movement the opportunity to toast their latest successes, like overturning landmark Supreme Court decisions, and air their latest grievances, which involve a sex worker’s martyred pet squirrel, for some reason. It also gave Fifth Circuit Court of Appeals Judge Edith Jones, whom President Ronald Reagan appointed in 1985, the chance to get a lot off her chest about Steve Vladeck, a Georgetown Law professor who committed the sin of critiquing the legal system.
Jones and Vladeck were both speakers on a panel titled “The Continued Independence of the Judiciary,” which was (ostensibly) moderated by Judge James Ho, Jones’s colleague on the Fifth Circuit. During the panel, Vladeck discussed how that independence is compromised by judge-shopping—a practice where litigants file cases in particular districts in order to guarantee that a friendly judge will hear their case. Although both liberals and conservatives put in the effort to find a favorable forum, this tactic has become a conspicuous problem in recent years in Texas, where judges like Trump appointee Matthew Kacsmaryk have established themselves as willing rubber stamps for Republicans’ shopping list.
Jones did not take issue with the substance of Vladeck’s critique so much as the idea that he was criticizing the judiciary at all. “Attacks on the judiciary are ultimately attacks on the rule of law,” she said. In a surreal staged moment, Jones revealed a manila folder filled with printed copies of critical articles, amicus briefs, and tweets written by Vladeck about forum-shopping, which she characterized as “an attack on the character of the judge.” She went on to suggest that such attacks had become physical: “All I will say is the consequence of all this is Judge Kacsmaryk is under 24-hour-a-day protection. He has five kids,” Jones said. “Someone has been indicted for a death threat against him.”
Later, the conservative activist Adam Mortara reiterated Jones’s suggestion that Vladeck’s scholarship is responsible for putting judges in physical danger. “Numerous death threats have been received by the judges that Vladeck has implicitly accused of bias,” Mortara said on Twitter. In another post, he blamed Vladeck’s “invective” for having “caused security issues for some of the judges he repeatedly singled out.”
It should go without saying that death threats are, to use a legal term of art, bad. But it is ironic that at the same time that the conservative-captured judiciary is putting people in actual danger, conservative elites are contending that the “real” danger is for people like Vladeck to call them on it. Conservative judges have condemned women to bleed out in parking lots while awaiting emergency abortion care. They obstruct efforts to stave off catastrophic climate change, and to keep people safe from the gun violence epidemic, and to stop the spread of a deadly pandemic. Soon, they’ll be debating whether to deny trans teens access to gender-affirming healthcare. The conservative legal movement frames dissent as dangerous, but it is their policy agenda—not critics speaking out about it—that puts much of the country at risk.
Repression of dissent is a signature trait of authoritarian regimes, and President-elect Donald Trump’s return to the White House will mean more attacks on Americans’ constitutionally-protected right to talk trash about the government. In August, Trump said that criticism of the judiciary “should be punishable by very serious fines, and beyond that.” In a rally the following month, Trump elaborated on what “beyond that” could entail: “These people should be put in jail, the way they talk about our judges and our justices,” he said.
If Trump indeed tries to curtail public criticism of the government, he may have allies on the Supreme Court. Justice Clarence Thomas, for example, has long called for the Court to reconsider New York Times v. Sullivan, a landmark 1964 decision that made it harder for public figures to win defamation cases, thus giving the press more freedom to hold powerful people accountable without fear of criminal sanctions or financial ruin. (In light of Thomas’s claims that recent reporting critical of his conduct is false, his position on Sullivan feels more than a little self-interested.) Justice Neil Gorsuch has also questioned the scope of Sullivan, and suggested that it may be out-of-step with the modern media landscape.
Jones’s tirade against Vladeck for criticizing judges, Trump’s calls for jail time for people who do the same, and Supreme Court justices’ receptiveness to curbing First Amendment protections are all ominous signs about how conservative elites will respond to critiques of their agenda in the coming years. Dissent is valuable in a democracy, because it exposes cracks in the facade of power. The conservatives who wield that power are desperate to keep dissenters quiet.
