Conservative Arizona Supreme Court Justice Clint Bolick has a warning for America

Yahoo

03-07-2025

Clint Bolick is worried.
The Arizona Supreme Court justice and rock star of the political right stood before a crowd of lawyers recently and rebuked "deeply disturbing" attacks on the American justice system coming from senior Trump administration officials.
"It's almost dystopian. And when I think of people wrapping themselves in the Constitution while they are simultaneously doing violence to it ... it is really scary stuff," Bolick told those gathered at the May event hosted by Society for the Rule of Law, a right-of-center legal organization.
Though he didn't name names, the speech showed an extraordinary level of openness for a Supreme Court justice, as justices typically refrain from commenting on public affairs to avoid perceptions of bias.
The fact the remarks came from Bolick, "a leader in center-of-right litigation and legal thinking," was "tremendously important," said Gregg Nunziata, executive director of the Society for the Rule of Law.
As America celebrates its 249th anniversary and a declaration of independence from tyranny on July 4, Bolick's comments represent his most piercing and direct condemnation of actions taken by the country's highest political leaders. And while he stressed the criticism was "neither partisan, nor ideological," the denunciation could open the justice up to retaliation from Trump allies or the president himself.
Bolick emphasized multiple threats in his speech, including Vice President JD Vance flippantly referring to "due process" on social media, and White House Deputy Chief of Staff Stephen Miller threatening to suspend habeas corpus if judges didn't "do the right thing." Habeas corpus protects against unlawful imprisonment.
He also chastised local threats to judicial independence, including a fierce campaign from the political left against his retention election in 2024, which focused on his decision to uphold an 1864 near-total abortion ban in Arizona.
Bolick is serving his final term on the Arizona Supreme Court and isn't in danger of losing his position. Arizona justices face mandatory retirement at age 70. But around the country, judges who have drawn the ire of Trump's allies have faced intimidation and threats of violence.
Already, Bolick's comments have prompted a response from one Trump ally, who said Bolick "should stay out of the political arena."
Bolick acknowledged avoiding politics was a difficult line to walk as a justice who is trying to defend the courts. He was hesitant to sit for interviews with The Arizona Republic and initially declined in-person questions, citing concern about "straying into political commentary."
He later agreed, noting the "unprecedented attack" on judiciary independence, and spoke with The Republic for several hours over three interviews.
"We have had very few instances where a president has threatened to ignore court decisions," Bolick said. "Both the left and the right are attacking judges routinely referring to them as corrupt."
Asked what a world without judicial independence would look like, Bolick offered an ominous warning.
"It looks like authoritarianism," he said.
Bolick's early career as a public interest attorney and special assistant at the Equal Employment Opportunity Commission under future U.S. Supreme Court Justice Clarence Thomas, who was chairman of the commission at the time, shaped his appreciation for the American court system.
Bolick went to D.C. to fight affirmative action in 1985 but changed course after Thomas gave him advice. "He said, 'Clint, the best way to get rid of affirmative action is by making it unnecessary and by fighting for empowerment options like freedom of enterprise and school choice,'" Bolick told The Republic.
Bolick devoted his career to those ends, eventually co-founding the Institute for Justice, a public interest law firm, and serving as vice president for litigation at the Goldwater Institute, a libertarian think tank and law firm.
One of his noteworthy clients was a street corner shoeshine stand operator named Ego Brown. Brown employed homeless people and D.C. officials tried to shut him down, Bolick said. But the law used against Brown was a relic of the Jim Crow-era, when government officials targeted Black individuals by rendering their work unlawful or by imposing literacy tests or fees.
Bolick came out on top, and the law was "the first economic regulation to be struck down as an equal protection violation in 50 years," he said.
The case showed him the power of the courts to right historical wrongs, keep government in check and create a level playing field for society's underdogs.
That appreciation for the judiciary's ability to level the playing field without political influence and help "the little guy against the government" has motivated Bolick to speak out.
"The judicial gavel is the ultimate equalizer in this country. We fight our battles from personal injury battles to constitutional battles in court rather than on the streets. And ... we won cases that we could never have won in a different country," Bolick said.
"It really is the American dream, and I think that an independent judiciary is really an underappreciated element of that," he said.
Bolick has pointed to a handful of threats against judiciary independence, both on the local and national levels: suspending habeas corpus, disregarding the importance of due process, threatening to ignore court orders and impeaching or voting out judges for unfavorable decisions.
In a column for Real Clear Politics in March, Bolick wrote that threats from "people in powerful positions and their legal sycophants" were intended to "delegitimize and neutralize the courts' vital role in our constitutional system."
He illustrated the stakes by referring to the 1944 landmark U.S. Supreme Court case that authorized Japanese internment. It was "one of the great stains on our Constitutional jurisprudence," Bolick said. He cited the dissent from Justice Robert Jackson at the time, who wrote that the court "validated ... racial discrimination in criminal procedure and of transplanting American citizens," which could be weaponized by any future administration who claims an "urgent need."
"Sound familiar?" Bolick said. "These words were prescient in 1944." He called the ramifications for civil liberties "absolutely breathtaking."
He did not name Vance or Miller by name during his speech in May, but he described the pitfalls of their positions and emphasized the risk — "I don't have a problem with naming names, but the concern in personalizing the issue is that these are universal principles," he later told The Republic.
Vance, in April, had taken to social media and questioned due process for undocumented migrants.
"To say the administration must observe 'due process' is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors," Vance wrote in part. It came after public backlash to the Trump administration's mass deportation campaign and mistaken deportation of a man to a notorious Salvadoran prison.
Bolick said flippantly referring to due process reflected the vulnerability of the rule of law.
"As if this concept was created by rogue liberal judges to help illegal immigrants stay in the country," Bolick said. "Due process is the most foundational legal principle protecting individual liberty in Western civilization. It dates back to the Magna Carta. It does not deserve to be in quote marks."
Bolick said Miller's comment about potentially suspending habeas corpus if the courts didn't do the right thing could be seen as a way "to intimidate the courts to reach decisions that they favor."
Mary Anne Franks, a legal scholar and left-leaning professor at George Washington University Law School, said Bolick's comments were "really powerful, really well put."
"What's happening here is so far beyond politics. This is the difference between a country that obeys the rule of law and an authoritarian one," Franks said. If people think they can look to their political affiliation to determine how they feel about these threats, what they are really doing is deciding if they like totalitarian rule and think they are going to be favored under such a system. she said.
White House spokesperson Harrison Fields did not directly respond to concerns expressed by Bolick in response to an inquiry from The Republic, but said, "Attacks against public officials, including judges, have no place in our society and President Trump knows all too well the impact of callous attacks having faced two assassination attempts.'
Bolick also has highlighted threats to impeach federal judges for unfavorable decisions — a concern echoed also by former Maricopa County Recorder Stephen Richer, who wrote a column in May titled, "If Trump keeps threatening our judges, we'll lose our rule of law."
Bolick cited a comment made by Trump ally Mike Davis, who was once floated as a potential attorney general option.
Davis said on Steve Bannon's "War Room" show that Republican lawmakers needed to threaten the impeachment of judges who thwart Trump's agenda, noting it was "important to have that Sword of Damocles over the judiciary's head."
Davis, a former law clerk for now-Supreme Court Justice Neil Gorsuch, who runs an organization called The Article III Project that claims to "fight radical assaults on judicial independence," told The Republic he has never called for impeaching judges "simply for unfavorable decisions."
"In very limited circumstances, we have called for the impeachment of judges who violate their judicial oaths with clearly lawless orders that endanger our national security. When judges take off their judicial robes, climb into the political arena, and throw political punches, they should expect political counterpunches," Davis said.
"Justice Clint Bolick should stay out of the political arena."
Bolick's criticism of local threats to judicial independence have focused on the campaign waged against him and another justice's 2024 retention after the 1864 abortion ban reinstatement. He doesn't pretend to equate the campaign against him to suspending habeas corpus or dismissing due process, but said, "on an Arizona scale, it was potentially very significant."
"Disagreeing with the outcome of a decision was not intended to be a part of of the retention process," Bolick said. His job in the case, he explained, was purely to interpret two conflicting state laws, not weigh in on constitutionality.
"I am unaware of a single credible criticism of the case," Bolick told The Republic.
DJ Quinlan, chairman of the campaign against Bolick, said it was "ridiculous" to compare his effort to threats coming from the Trump administration because the Arizona Constitution gives voters the right to retention elections and voters had a right to vote however they saw fit.
Quinlan rejected the idea that the campaign targeted Bolick simply for an unfavorable ruling — yes, the organizers disliked the ruling, but he explained that it was born out of the belief the Arizona Constitution protects abortion as a fundamental right to privacy.
That theory, echoed repeatedly by Kris Mayes during her campaign for attorney general in the 2022 election, has not been tested in the Arizona courts.
Bolick pointed also to the Maricopa County Republican Committee's 2024 censure of the Arizona Supreme Court. The censure came after the high court declined to overturn the 2022 election results in Abe Hamadeh's race for attorney general against Mayes and authorized a defamation case against gubernatorial candidate Kari Lake to continue.
County committee Chairman Craig Berland and First Vice Chairman Shelby Busch did not respond to requests for comment.
Bolick does seem either hesitant to go too far with his warnings or uncertain how severe the threat is. "This is virgin territory," he said.
He stopped short of saying he's concerned for democracy, opting to express his worry for maintaining a "constitutional Republic" instead. In other words, the United States could lose its judicial independence and still technically stay a democracy, it just wouldn't be what Americans are used to.
He referred to Mexico's recent shift to judicial elections to explain.
"They just switched to a system where judges are elected essentially on the same ticket as the national government. There is no question in my mind that that will be a very compliant judiciary," Bolick said. "In a constitutional republic, we have a judicial check on the executive branch and that is what is at risk."
While arguing that countries without independent judiciaries tend toward authoritarianism and raising the alarm over threats to judiciary independence in the United States, Bolick said he hasn't seen any "overt leaps in that direction."
He was more conservative in his assessment of how far down the path the United States was toward authoritarianism, compared with other legal scholars.
He sees the threats in three stages. The United States, he said, was in the middle "alarm stage" — wading into the third but not quite there. He defined the final stage as the president ignoring judicial orders enforcing constitutional boundaries.
"That's where we would have, in my opinion, authoritarianism. Because if the president were allowed to operate unchecked, we would have what was a system of unbound executive power," Bolick said.
Others, such as Franks, think the country is in far worse shape.
"For the president to feel comfortable, and for basically everyone that he has placed around him to have power to say, 'We don't have to obey anything we don't want to,' ... that is authoritarianism. That is where we are," Franks said.
She, unlike Bolick, is worried judges already are capitulating to Trump — pointing to the U.S. Supreme Court's decision last summer to grant the president broad immunity from criminal prosecution for actions they take to carry out their official duties.
Whether the country has enough "institutional framework" to combat that "remains to be seen," she said.
Bolick's main hope is that judges maintain their duty to the Constitution, not public sentiment. At a time when judges face intimidation, he said, that act alone requires courage.
Former Arizona Supreme Court Justice Scott Bales said he shared "Bolick's concern that we preserve independent courts as protectors of our constitutional liberties."
Franks said she thinks the warnings were "probably more compelling from a public opinion standpoint that it's coming from someone who isn't identified as a leftist liberal judge."
Nunziata said Bolick's warnings reflected a broader trend of the judiciary taking on the lion's share of work in defending the Constitution and limiting the government.
"Without a robust, independent judiciary and with a supine or compliant Congress, there's virtually no limit to what the government can do to take away our liberties," Nunziata said.
Taylor Seely is a First Amendment Reporting Fellow at The Arizona Republic / azcentral.com. Do you have a story about the government infringing on your First Amendment rights? Reach her at [e-mail] or by phone at 480-476-6116.
Seely's role is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.
This article originally appeared on Arizona Republic: AZ Supreme Court justice warns of attacks on independent judiciary