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The role of the courts and an independent judiciary has been much discussed as actions taken by executive order are being challenged in lawsuits. Duke Law Professor Marin K. Levy is an expert in judicial administration, civil procedure, and the federal judiciary, and serves as the academic director of the Bolch Judicial Institute. Levy is also the author, with U.S. Court of Appeals Judge Jon O. Newman, of Written and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals. In this Q&A, Levy explains the role of the federal judiciary and how the judicial, legislative, and executive branches provide checks and balances of each other.  

Data shows attacks and intimidation of judges have been on the rise in recent years. Have there been other moments in history like this? 

We have certainly had moments in the past in which there were efforts to intimidate judges and justices. For example, in the wake of Brown v. Board of Education in 1954, there was a campaign to impeach Chief Justice Earl Warren. But I think what we are seeing today is different by an order of magnitude. As Chief Justice John Roberts noted in the 2024 Year End Report on the Federal Judiciary, hostile threats and communications directed at judges have more than tripled over the past decade. In the past five years, the U.S. Marshals Service has investigated more than 1,000 serious threats against federal judges—a figure that I fear will only grow. More recently, we have seen calls to impeach several members of the judiciary, accompanied by efforts to publicize their home addresses over disagreements with judicial decisions. These sorts of intimidation tactics invite wide-scale harassment of the sort that we simply have not seen before—and they threaten the ability of judges to act independently. 

What authority do federal courts have over executive actions, and what authority does the executive have over the judicial branch?   

Ever since the early days of the republic, the Supreme Court has held the authority to review the legal basis for executive – and legislative – actions, including whether those actions violate the Constitution. 

Not infrequently, we see a court reviewing the actions of an administrative agency—a part of the executive branch. But as part of this power, courts can and do assess actions taken directly by the president, most often in executive orders. Judicial review of these orders serves to keep presidential power in check. 

The more complicated part of this question relates to how courts can ensure that their orders are followed. Simply put, courts lack the power of the sword and the power of the purse. Their ability to act as a check on the other branches has generally rested on the compliance of the other branches—that is, public officials obeying court orders. Courts are not powerless in the face of noncompliance: They can hold officials who do not follow court orders in contempt of court, and ultimately issue fines or even consider jailing those not in compliance. But our system of government functions because the other branches have generally respected court orders.   

In many ways, the executive’s greatest authority over the judiciary is on the “front end”—it is the president who nominates individuals to become Article III judges. Those individuals then go through a confirmation process in the Senate, so that is another type of authority. But once judges are confirmed, they are meant to be independent of the political branches.  

On what grounds can a federal judge be impeached? 

It’s important to stress at the outset how rare impeachment is. Over this country’s history, we have had thousands of federal judges. Only 15 have been impeached and only eight were convicted and thus removed from office. Congress alone has the authority to impeach an Article III judge. It involves a two-step process. First, there is a simple majority vote of impeachment by the House of Representatives. Second, there is a trial and then possible conviction by the Senate, if a two-thirds majority supports it.

Impeachment is meant to be used only for serious misconduct. Just as with other government officials, the Constitution sets out that judges may be impeached for engaging in “treason, bribery, or other high crimes and misdemeanors.” Charges of the judges who have been impeached include accepting bribes, mental instability and intoxication on the bench, abuse of the contempt power, and other misuses of the office.  

Impeachment is not to be used when a litigant simply does not like the outcome of a case—for that, the litigant can avail him or herself of the appeals process.  

Data shows legal challenges to executive actions are often filed in “friendly” venues due to the ideological background of the appointed judges. Do you see this as a problem, and if so, what is the solution?

Judge-shopping is a significant problem—and a problem that can, and should, be fixed. The problem arises out of a benign set of conditions. Some federal districts are geographically quite large, so they are divided into sub-units called divisions. And in some districts with divisions, cases are assigned to a judge in the division in which the case is filed—primarily so that parties don’t have to travel great distances to litigate their case. But if only one judge sits in the division, litigants who file in that division can essentially select their judge. 

Last year the United States Judicial Conference—the policy-making body of the judiciary—set out a policy recommending that all civil actions that seek to bar or mandate state or federal actions be assigned randomly to a judge within the district as a whole. Not all district courts elected to follow the policy, however, and so the problem persists in some parts of the country.  

But recently the Chief Judge of the District of Massachusetts ordered that, in single-judge divisions, new cases seeking to block a federal law or policy nationally be randomly assigned to a judge within the district as a whole. This was expressly done to comply with the Judicial Conference’s policy, and after several lawsuits were filed challenging actions by the current administration.