The first package to arrive in the mail following my appointment to the Marin Superior Court was Judge David Rothman’s treatise, The California Judicial Conduct Handbook. Weighing in at 971 pages, it is a formidable piece of scholarship. It landed on our doorstep two weeks before the judicial robe from academicapparel.com arrived and posed a far more significant challenge in terms of preparing for my new job.

Rothman’s book is in every judge’s chambers throughout the state. It has been the definitive source for ethics guidance for California judges since it appeared in 1990. The stated purpose of the book is to assist judges in the performance of their duties. And “most important, [provide] a basis for an understanding of the essence of what being a judge is about.” (Rothman at 4.) This is a tall order.

Central to Rothman’s exercise is the application of the rule of law as a central “pillar” to the integrity of judicial decision making. This foundational principle is in the news a lot lately, with at least three Supreme Court justices weighing in on the importance of judicial independence and its relationship to the rule of law. Reflecting on the comments of our nation’s highest judges, it is helpful to consider their observations—both what is said and what is left unspoken—within the context of California’s leading judicial ethicist.

Adherence to the Rule of Law as an Ethical Responsibility

Rothman sees adherence to the rule of law through an ethical lens. Deviation from it poses a distinct danger that erodes public confidence in judicial institutions and undermines our participatory democracy. “Judges are not in courtrooms to make up the rules as they go along.” (Rothman at 23.) Rather, judges are to be guardians of the formal and procedural elements that comprise the rule of law. This is necessary both for the parties who appear in our courts as well as for the preservation of our modern social order. (Rothman at 24.)

So, what does Rothman’s text tell us about the proper judicial response to our current legal environment and the repeated verbal attacks directed at federal district court judges? Quite a lot, it turns out.

First, Rothman admonishes judges not to offer public comment on any pending case in any court. (California Code of Judicial Ethics, Canon 3B (9).) That is a broad prohibition. The roots of this restriction are found throughout the California Code of Judicial Ethics. Canons 1 and 2 require judges to maintain public confidence in the judiciary, while Canon 2A forbids judges from making “statements, whether public or nonpublic, that commit the judge with respect to cases, controversies, or issues that are likely to come before the courts or that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Further, Canon 4 requires judges to conduct themselves outside the courtroom so “as to minimize the risk of conflict with judicial obligations.”

The proper functioning of our courts depends on judicial officers following these restrictions. Central to this idea is that public trust in our courts is contingent on an impartial judiciary. As the Advisory Committee commentary to Canon 1 recognizes, "although judges should be independent, they must comply with the law and the provisions of this code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this code diminish public confidence in the judiciary and thereby do injury to the system of government under law.”

At the same time, judges are urged to communicate with the public about the importance of preserving judicial independence and the role of the rule of law in our legal system and our democracy.¹

Faced with these competing directives, Chief Justice John Roberts’ 2024 Year End Report on the Federal Judiciary, Justice Sonia Sotomayor remarks at Georgetown Law Center, and Justice Ketanji Brown Jackson’s recent address to the First Circuit Judicial Conference entitled Preserving Judicial Independence and the Rule of Law provide us with valuable illustrations of how judges are to balance these twin obligations. And as members of the legal profession, the justices’ observations provide us with meaningful insight into the relationship between judicial independence and the rule of law. Finally, Chief Justice Roberts and Justices Sotomayor and Jackson provide guidance to members of the legal profession on our collective responsibility to preserve and protect the rule of law in American society.

Defining Our Terms

Our second president, John Adams, articulated the general concept of the rule of law as “a government of laws, not of men.” Thomas Paine in Common Sense popularized this idea, imploring his countrymen, “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” Today, the Administrative Office of the United States Courts defines the rule of law as “a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.”

The rule of law has been subject to varying definitions by social theorists, but it is generally understood to comprise formal and procedural elements structuring the way a community is governed. The formal elements require that law is: (1) general (applying equally to all persons), (2) public (available as public knowledge to persons subject to it), (3) prospective (promulgated in advance of people’s responsibility to comply), (4) intelligible (such that persons are able to comprehend what the law requires), (5) consistent (similar cases are treated similarly), (6) practicable (so that persons can comply), (7) stable (such that persons are able to fashion their behavior), and (8) congruent (with other rules and dictates).²

The procedural elements of the rule of law concern the processes by which the law is administered. Central to these procedural aspects is: (1) a hearing, (2) before an independent and impartial tribunal, that is (3) required to administer legal norms based on evidence (4) involving parties who possess the right to counsel, (5) the right to be present,
(6) the right to confront witnesses, and (7) the right to present evidence and argument.
Within this structure, judicial independence is a generally accepted prerequisite to the rule
of law.

Rothman adopts this general framework and provides a helpful operational definition: “Observing the rule of law involves the fair application of the federal and state constitutions, statutes, case law, rules of court, the Code of Judicial Ethics, and other laws, ensuring the constitutional rights of all before the court, including self-represented persons.” (Rothman at 24.) It is a broad legal checklist.

Judicial independence for Rothman “does not mean freedom from constraints of the law.” Rather, judicial independence ensures that decisions “are not influenced by political considerations, public opinion, the need to be popular, fear of losing an election or the desire to curry favor with the powerful.” (Rothman at 24.) Judicial independence also does not mean that judicial decisions should be insulated from criticism. See Cooper v. Aaron, 358 U.S. 1, 24 (1958) (Frankfurter, J., concurring) (“Criticism need not be stilled. Active obstruction or defiance is barred.”) Criticism of judicial reasoning is part of a healthy democracy. But judicial independence requires that judges rule independently in each case in a manner the judge believes the law requires. Verbal attacks on individual judges designed to intimidate judges to rule a certain way are, within this framework, attacks on the rule of law.

Chief Justice Roberts and the 2024 Year End Report on the Federal Judiciary

Judicial independence and its relationship to the rule of law was the dominant theme of Chief Justice Roberts’ Year End Report. The Chief Justice observed: “Our political system and economic strength depend on the rule of law.” (Roberts, 2024 Year End Report on the Federal Judiciary, www.supremecourt.gov/publicinfo/year-end/2024yearendreport.pdf, at 8.) The rule of law, in turn, is predicated on an independent judiciary. Quoting his predecessor Chief Justice Rehnquist, Chief Justice Roberts explained, the “Constitution protects judicial independence not to benefit judges, but to promote the rule of law.” (Roberts at 3.)

And yet, Chief Justice Roberts warns the rule of law is under attack. Observing that vigorous debate and criticism of judicial decisions are inevitable and foster a more robust democracy, the Chief Justice dedicates the bulk of his report to addressing the current threats to judicial independence and the rule of law. “I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.” (Roberts at 5.)

Focusing on the threats of the political branches’ open defiance of court orders, Chief Justice Roberts is candid: “judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees.” (Roberts at 8.) He cautions that “within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.” (Roberts at 8.)

Roberts is offering both a warning and a plea. He highlights the fragility of the rule of
law within the current political environment and our information ecosystem. He acknowledges that judges must stay in “our assigned areas of responsibility.” (Roberts at p.9.) And he expresses optimism that judges and the other branches of government will achieve the “successful cooperation” essential to our nation’s success. Central to this enterprise is respect for judicial independence and the rule of law.

Chief Justice Roberts repeated these themes in remarks at a judicial event in Buffalo, New York on May 7. “Impeachment is not how you register disagreement with decisions,” Roberts observed. Speaking to the broader function of judges in our system of government, Roberts explained: “[t]his job is obviously to decide cases, but in the course of that, to check the excesses of Congress or the executive, and that does require a degree of independence.”

Justice Sotomayor’s Remarks at Georgetown University Law Center (March 2025)

Speaking to law students and faculty at Georgetown, Justice Sotomayor opened by defining the rule of law. After referencing the definition in Black’s Law Dictionary, she adopted a framing that she found more satisfying from the World Justice Project: “[t]he rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.” By “just law” she adopted the following explanation “the law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.”

Without reference to any of the specific statements directed at federal or state judges, Justice Sotomayor was keenly sensitive to the current political environment: “more than ever, we have to get up and explain and repeat and explain again why judicial independence
is critical to everyone’s freedom.” And, reflecting on the subject, Justice Sotomayor urged that we identify the principles and values that are incorporated into our conception of the rule of law. These principles, in turn, must “revolve around a sense of ethics”— “commitment by the society to abide by certain norms that are fundamental to our existence.”

Justice Sotomayor then posed the question: “what is the right thing that law should
be aspiring to accomplish?” She observed that in the present moment there are a lot of
questions about what are our “common norms.” And there is urgency for us to align on a set
of shared values. “Once we lose our common norms, we’ve lost the rule of law completely.” Having posed the central question, Justice Sotomayor answered it: our courts must be (1) “fearlessly independent,” (2) “protective of rights,” and (3) “ensure that the state is respectful of both.” Then, as if to emphasize this last point, the Justice added: “We have to demand that all others respect both of these principles.”

Justice Sotomayor takes as a starting point that the independence of the judiciary must be unqualified. Further, the role and function of the courts, as a co-equal branch of government, must be respected by others. And like her colleague Chief Justice Roberts,
she views establishing these precepts as a collective responsibility of the legal profession.

Justice Jackson’s Address to the First Circuit Judicial Conference (May 2025)

Finally, Justice Jackson’s remarks on judicial independence and the rule of law provide the most detailed recent examination from our Supreme Court justices. Her address captured the attention of the national press. The New York Times headline proclaimed: Attacks on Judges Undermine Democracy, Warns Justice Jackson. (Perez Sanchez, NY Times, May 1, 2025, at www.nytimes.com/2025/05/01/us/politics/supremecourt-justice-jackson.html.) The Justice offered a nuanced and thoughtful explanation of the importance of judicial independence and its relationship to the rule of law in our system of government.

Justice Jackson opened her remarks by addressing the “elephant in the room.” Namely, “the relentless attacks and disregard and disparagement that judges around the country are now facing on a daily basis.” But rather than focus on a specific case, defend a particular judge or respond to a particular verbal accusation, Justice Jackson addressed the social dimension of this dynamic.

Justice Jackson observed: “a society in which judges are routinely made to fear for their own safety or their own livelihood due to their decisions is one that has substantially departed from the norms of behavior that govern in a democratic system.” She explained: “attacks on judicial independence are how countries that are not free, not fair, and not rule-of-law oriented operate.” Justice Jackson then expanded on this theme: “having an independent judiciary—defined as judges who are ‘indifferent to improper pressure’ and ‘determined to decide each case according to the law’ is one of the key ingredients that makes our free, fair, and law-centered society work.”

Justice Jackson highlights the consequences of verbal attacks on individual federal district court judges within a values-based social order. She is further sensitive to the broader systemic impact. “The attacks are also not isolated incidents; that is, they impact more than just the individual judges who are being targeted. Rather, the threats and the harassment are attacks on our democracy—on our system of government. And they ultimately risk undermining our Constitution and the rule of law.”

Looking Ahead

So, what are judges supposed to do in the current environment to ensure judicial independence is preserved? Justice Jackson offers two suggestions. First, judges should engage with others about what we do and our role in defending the Constitution and the rule of law. Second, judges need to remind ourselves of the “core values that guide us in our daily work.”

Here, Justice Jackson sounds a lot like Judge Rothman. Rothman admonishes California judges: “[w]e need not be reminded of the fragility of the rule of law when public confidence is shaken, or the degree to which public confidence in public institutions has
deteriorated in recent times. Articulation of the moral principles and values to which the
judicial institution binds itself should serve to encourage public confidence in that institution, and respect for its decisions.” (Rothman at 24.) Stated differently, Rothman
urges California judges to speak, write, and participate in activities promoting the rule of
law by articulating the “moral principles and values” that define our system of justice. Underscoring the same themes as Justice Sotomayor, Judge Rothman emphasizes that this
articulation should, in turn, be designed to promote public confidence in our judicial system.

Chief Justice Roberts, Justices Sotomayor and Jackson, and Judge Rothman further acknowledge the fragility of the rule of law in a society where public confidence in the judicial system is shaken. This issue is of increasing urgency as favorable views of our Supreme Court continue to be close to historic lows.³

Here in Marin County, the Superior Court’s moral principles and values are set out in our mission: “To ensure fair and equal access to justice and serve the public with dignity and respect.” The core moral principles guiding our courts include equality, fairness, accessibility, judicial impartiality, and respect for human dignity. And central to this mission is fidelity to the rule of law. It is a commitment to each person who appears in our courts that they are afforded the fair application of the state and federal constitutions, statutes, case law, and rules of court. We don’t make up the rules as we go along.

For Rothman, adherence to the rule of law is a central “pillar” to judicial decision making. More broadly, it is vital to the American ethos. It is an animating force in our collective, intuitive sense of ordered liberty. As Justice Ruth Bader Ginsberg wrote, an independent judiciary is “essential to the rule of law in any land,” yet it “is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to assure its preservation.”⁴ As judges, lawyers, and public citizens committed to the quality of justice in our country, we are called by these times to reaffirm our adherence to the rule of law. And we are summoned to recommit ourselves to the moral principles that define our judicial institution. As Justice Jackson reminded her colleagues in the First Circuit, “other judges have faced challenges like the ones we face today and have prevailed.” Now it is our turn.

Footnotes

^{1 See, Conversation with Patricia Guerrero, Public Policy Institute of California, November 3, 2023 at 30:14 (www.ppic.org/event/a-conversation-with-chief-justice-of-california-patricia-guerrero/). See also, Cal. Code Jud. Ethics, Canon 4B, Advisory Committee Commentary (“As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice []”).
2 For a more complete discussion of these elements see, L. Fuller, The Morality of Law, Yale University Press (1964); HLA Hart, The Concept of Law, 3d ed. Oxford Clarendon Press (2012); and J. Rawls, A Theory of Justice, Harvard Univ. Press (1999) at pp. 206-13.
3 Pew Research Center, Favorable Views of Supreme Court Remain Near Historic Low (August 4, 2024) (Fewer than half of Americans (47%) express a favorable opinion of the court. And just 24% of Democrats and Democratic-leaning independents view the Supreme Court favorably) at www.pewresearch.org/short reads/2024/08/08/favorable-views-of supreme-court-remain-near-historic-low/.
4 R.B. Ginsburg, Remarks on Judicial Independence, Conference of American Judges Association, 2006.}