This ongoing series in The Fulcrum, “Judges on Democracy,” invites retired federal judges to speak directly to the American public about the foundational principles of our legal system: the separation of powers, the rule of law, and the indispensable role of an independent judiciary in our democratic republic.
Responses of Mark E. Recktenwald, Chief Justice (ret.), Hawaii Supreme Court, member of Keep Our Republic’s Alliance of Former Chief Justices:
Why did both our federal and state constitutions enshrine independent judiciaries?
Independent judiciaries are fundamental to the separation of powers and ensure that the rule of law is upheld without external influence. In colonial America, there was deep distrust of executive overreach. The Founders intended federal courts to be a check on both the executive and legislative branches. This tripartite system of government promotes accountability and protects against abuse. As James Madison said, concentrating the immense power of government in one person “may justly be pronounced the very definition of tyranny.”
Independent judges are guardians of the Constitution. While the President and members of Congress are elected officials who must please the voters, federal judges owe their sole loyalty to the Constitution and laws of the United States.
These same pressures exist at the state level and have led to the adoption of state constitutions that similarly divide powers among branches of government and establish independent judiciaries. Indeed, those concepts were developed in the colonies after the colonies declared their independence, as reflected in the Massachusetts Constitution of 1780. Part of the genius of our system of federalism is that states are incubators of democracy, testing and developing ideas that later become part of federal law, and vice versa.
Why are retired state supreme court chief justices speaking out now, and what compels them to raise their voices?
Retired chief justices have a unique perspective about the role of judges in our democracy. We have each led statewide judiciaries. Most, if not all, of us have experienced challenges to the independence of the judiciaries we led, and we each strove to earn public trust and build respect for the rule of law in the communities we served.
We know that criticism of the legal merits of judicial rulings comes with the territory, and is healthy for our democracy. But something different has been happening recently on the national scene: hostile, highly personal attacks on judges because of how they decide a particular case. Suggestions that judges are lunatics, partisans and lapdogs whose families should be ashamed of them do not further informed debate. Instead, they delegitimize the judicial process and undercut public respect for courts. They also normalize threats toward judges, which have increased in recent years.
Moreover, currently serving judges have ethical limits on how publicly they can speak in response to threats to the rule of law. With limited exceptions, they are not allowed to engage in activity that could be regarded as partisan, or comment on pending or impending cases. In these circumstances, retired judges and justices needed to step up and share their perspective with the public, through groups such as the Alliance of Former Chief Justices and the Article III Coalition, both of which are supported by the nonpartisan, nonprofit organization Keep Our Republic.
How are state judiciaries uniquely suited to meet this moment, perhaps in ways the federal courts cannot?
The U.S. Constitution is a floor, not a ceiling, on the individual rights of our citizens. Each state is free to provide greater protections in its own constitution, as long as they don’t conflict with the federal constitution. This principle, known as “state constitutionalism,” was celebrated by then-Associate Justice William Brennan in a famous 1977 article titled “State Constitutions and the Protection of Individual Rights.”
Some state constitutions include provisions that aren’t found in the federal constitution. For example, the Kansas constitution provides that “[a]ll men are possessed of equal and inalienable natural rights.” The Kansas Supreme Court held in Hodes v. Schmidt (2019) that this language established a right to personal autonomy, including a woman’s right to have an abortion.
Also, state courts can more broadly interpret provisions in their own constitutions that are identical in language to the United States Constitution. For example, a state supreme court can hold that certain police conduct that would be allowable under the federal Constitution—such as conducting a warrantless search of the trash outside a person’s home—is unlawful under the same language in their state’s constitution, and the resulting evidence is suppressed in a prosecution in state court.
As today’s U.S. Supreme Court dials back on some of the protections provided by the federal Constitution, state constitutions may provide a backstop. This was highlighted recently by a Hawaii Supreme Court decision authored by Justice Todd Eddins, State v. Granillo. Justice Eddins criticized recent U.S. Supreme Court cases including Dobbs v. Jackson Women’s Health Organization (2022) and Louisiana v. Callais (2026), observing that what the Court “has done to constitutional rights, democratic institutions, and the rule of law explains why Hawaiʻi’s Constitution takes no instruction from it. . . . This court does not anchor Hawaiʻi’s due process rights to the federal floor. Especially one that keeps sinking.”
What is the greatest threat facing the judiciary in each justice’s state?
There are two related threats. One is violence and the threats of violence against judges and court staff. There have been several horrific incidents in recent years. The son of U.S. District Judge Esther Salas was murdered in 2020 inside their home by a disgruntled lawyer posing as a deliveryman. Maryland Judge Andrew Wilkinson was shot to death in his driveway in 2023 by a disgruntled litigant. And former Wisconsin judge John Roemer was bound and shot to death in his basement in 2023 by a criminal defendant he had sentenced many years earlier.
More recently, U.S. District Judge John Coughenour, who issued a high-profile ruling against the government in an immigration case, reported receiving “dozens, if not hundreds” of threats. Rhode Island federal judge John McConnell ruled against the administration, and his office received 400 threatening emails and calls. Most disturbing, he received a pizza delivered to his home, despite not having ordered it. The delivery was in the name of Judge Salas’ dead son.
These recent incidents involving threats to judges are no doubt related to the rising disrespect for the rule of law, fueled in part by repeated personal attacks on judges by public officials and their allies, and amplified by social media. This erosion of respect for the judicial branch is the second threat facing the judiciary.
What was the most impactful part of serving as chief justice?
Making the community safer by changing the lives of people who otherwise cycle repeatedly through the criminal justice system. We empowered staff, judges, and community partners to innovate to address persisting problems like domestic violence, houselessness, and substance abuse. We developed more “treatment courts” that use a team approach—prosecutors, public defenders, judges, probation officers, and counselors—who work together to address the root causes that bring people into the criminal justice system. The programs are long—about two years typically—and there are often setbacks along the way. But there is no experience like attending a graduation ceremony at one of these courts, where clients talk about their struggles, the lessons they learned, and their hopes for the future.
What do they wish more citizens understood about the judicial process?
Although the judicial process isn’t always perfect, it strives to be fair, has integrity, and is designed to get to the truth. In short, it is worthy of trust. It is critical that current and former judges venture out more into the community to engage directly with citizens. One recent example was the Justice in Motion bus tour that visited schools, community centers, and diners in towns in Pennsylvania, Ohio, and Michigan.
In Hawaii, we developed a program called Courts in the Community. Our Supreme Court traveled around the state twice a year and held oral arguments in actual cases, where up to 500 high school students watched the argument, then had separate Q&As with the arguing lawyers and the justices. Critically, attorneys from the community would visit the participating schools before we came to campus to explain the case to the students and have them engage in a mock argument.
The program empowers the students to think critically and understand the process. After one argument, a student proudly mentioned that he had asked the same question in his mock argument as one of the court’s most respected members, Justice Simeon Acoba (ret.), did during the actual argument. Another student said he was surprised that the court asked tough questions of the state's attorney in a criminal case. I understood him to mean that he expected we would simply accept what the state said without question. I can talk about the rule of law until I am blue in the face, but there is no substitute for a young person seeing it in action.
