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It is not that attacks on judges should not occur – but they should not be ad-hominem and personal. The criticisms of judges ought to be directed at and located in decisions that judges make after a deliberative process, writes Penelope Andrews.
Attacking judges has been par for the course in the United States (US) since Donald Trump's election in 2016 and its frequency seems unprecedented in recent times.
Whether a judge finds against President Trump's insidious business practices at Trump University, or the unlawful activities of the Trump Foundation, or against a Presidential Order denying migrants the right to apply for political asylum in the US, the president considers the individual judges as disloyal and/or unpatriotic.
Similarly in South Africa, the attacks on judges are alarming, but sadly not just of recent vintage. Barely had President Jacob Zuma taken office when the attacks on the judiciary began. For example, in 2008 Gwede Mantashe, then secretary-general of the African National Congress (ANC), referred to judges as "counter-revolutionaries".
Deputy Chief Justice Moseneke was also then severely criticised for stating that judges are beholden to the Constitution – and not a political party. Julius Malema piled on his attacks against the judges, a practice he has continued over the past decade with the same combination of bluster and ignorance. This despite the fact that during the latter part of the Zuma years Malema consistently embarked on constitutional challenges against the president, dependent on judges to carry out their adjudicatory functions without fear or favour.
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In a constitutional democracy judges are in effect the penultimate guardians of the Constitution, playing a very different role from that of the executive or legislature. Judges are not politicians in black robes, even though they might hold particular viewpoints, but are required to interpret and apply the law without fear or favour. As Chief Justice Roberts of the US Supreme Court noted, "We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation."
It is not that attacks on judges should not occur – but they should not be ad-hominem and personal. The criticisms of judges ought to be directed at and located in decisions that judges make after a deliberative process, which they justify through their reasoning and analysis and which are explained in their judgments. The system of appeals serves to ensure that lower court judges have interpreted the law correctly, and if they fail to do so, their judgments are subject to being overturned by a higher court. The court system and structure therefore ensure the correction of judicial errors and the minimising of arbitrariness.
In a vibrant democracy, the criticism should be of the reasons stated in a judgment, where the errors or inconsistencies in the judge's decision are identified. In South Africa, as in the US, personal attacks on judges, as opposed to critiques of their judgments, serve no purpose other than demeaning the judiciary, an important pillar of a constitutional democracy. They may also result in the rule of law itself being undermined.
Reducing the faith of the citizenry in the rule of law is a destructive trend that breeds the kind of cynicism that we witness in the public towards the legislature and executive. For example, both Trump and Zuma are regarded as charlatans who attained public office through invalid tactics – and who are perceived by many as having soiled the office of the president in a variety of ways. It has also been noted that Trump has been one of the most sued in history, an achievement shared by Zuma. The attacks on judges are in fact a by-product of their holding the office of the president and their abuse and corruption of presidential power.
Ad-hominem personal attacks on judges also serve to erode the credibility and legitimacy of the judiciary. This is particularly troubling in South Africa in light of the herculean efforts to achieve the constitutional democracy, which is still in an embryonic, and therefore fragile, stage. It is also troubling in the US, but the courts and legal institutions there have a longer history and are therefore sturdier in many respects. In other words, the rule of law in the US, although seriously put to the test for most of that country's existence, has had a much longer period to develop strength and resilience. That is not the case with South Africa's young democracy.
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Another alarming consequence of the personal attacks on judges may be related to safety concerns. For example, a judge who found against President Trump's travel ban against Muslims from certain countries, found himself at the receiving end of online threats and associated abuse. Social media has become ground zero for these attacks and judges in the US and South Africa are no doubt concerned about these developments.
The judiciary is a co-equal branch of government that deserves respect, even when politicians disagree with their decisions. The courts and judges are not obstacles to be attacked and undermined. To attack judges for doing their job, namely adjudicating the range of contemporary controversies, is downright dangerous in a democracy, whether that democracy is South Africa or the United States.
- Andrews is distinguished visiting professor of Law at the New York Law School, host of the South Africa Reading Group and co-director of the Racial Justice Project.
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