Berkeley NYU Report: Lawyers Must Defend Federal Judicial Independence

• A new report from the Berkeley Judicial Institute and NYU Rule of Law Lab highlights escalating threats and disinformation straining the federal judiciary.
• The report, based on interviews with 34 federal judges conducted between October 2025 and July 2026, was released on September 2, 2026.
• It argues lawyers are uniquely positioned to defend judicial independence and public confidence in courts, citing their constitutional oath.
• The study references ABA Model Rule 8.2 Comment 3, which encourages lawyers to defend judges and courts against unjust criticism.
• Recommendations include public officials refraining from intimidating federal judges and Congress actively supporting an independent judiciary.

The Berkeley NYU report emphasizes the critical role lawyers play in safeguarding judicial independence, framing it as both a professional obligation and a practical necessity.

A recent collaborative study, released on Monday, September 2, 2026, by the Berkeley Judicial Institute at the University of California at Berkeley School of Law and the Rule of Law Lab at the New York University School of Law, underscores a growing crisis facing the federal judiciary. Titled "Threats to the Independence of the Federal Judiciary," the Berkeley NYU report details how escalating challenges are placing significant strain on the nation's courts. The findings are based on extensive interviews conducted with 34 federal judges over a ten-month period, from October 2025 to July 2026.

The report specifically identifies a concerning rise in intimidation, harassment, disinformation, and direct threats targeting judges. These pressures, the study concludes, are actively undermining the independence of the federal judiciary. The authors argue that maintaining public confidence in the judicial system is paramount, and lawyers, in particular, are uniquely positioned to contribute to this effort. Unlike judges, who must remain impartial, legal professionals can engage more actively in public discourse to advocate for the judiciary's integrity.

The Berkeley NYU report emphasizes the critical role lawyers play in safeguarding judicial independence, framing it as both a professional obligation and a practical necessity. It highlights that every lawyer takes an oath to uphold and defend the Constitution, of which an independent judiciary is a foundational component. This ethical imperative is reinforced by specific professional guidelines, with the report citing Comment 3 to Model Rule 8.2 of the ABA Model Rules of Professional Conduct. This comment explicitly encourages lawyers "to continue traditional efforts to defend judges and courts unjustly criticized."

Retired U.S. District Judge Jeremy Fogel, who served in the Northern District of California and is the executive director of the Berkeley Judicial Institute as well as a contributor to the report, further elaborated on this point. Speaking to Law.com, Judge Fogel stressed that lawyers possess a direct stake in both an independent judiciary and the broader rule of law, as well as in public trust in the legal system. He noted their unique ability to explain complex concepts like judicial independence and the system of checks and balances to the general public, thereby reinforcing confidence in the federal judiciary. While some bar associations and professional legal networks have already issued statements in defense of judicial independence, the report suggests these efforts could be significantly expanded to meet the current challenges.

Beyond the role of lawyers, the report offers broader recommendations aimed at strengthening the federal judiciary against contemporary threats. It urges public officials across the entire political spectrum to cease any efforts that could be perceived as intimidating federal judges. Furthermore, the study calls upon Congress to actively support an independent federal judiciary through legislative and other means.

The American Bar Association (ABA) has also been recognized for its commitment to these principles. The Berkeley NYU report specifically cited the ABA's ongoing work to defend the rule of law and the judiciary, including a notable statement issued on March 3, 2025. In this statement, the ABA unequivocally rejected efforts to undermine the courts and the legal profession, demonstrating its dedication to championing the courts and judicial independence. The report implicitly reinforces the idea that a concerted effort from all stakeholders is necessary to preserve the integrity and functionality of the nation's judicial system.

This report reinforces the ethical duty of lawyers to defend judicial independence, particularly under ABA Model Rule 8.2. Lawyers should consider how they can actively engage in public advocacy to preserve confidence in the federal judiciary, potentially through bar associations or pro bono efforts, and be aware of escalating threats to judges.

Source: Original reporting via ABA Journal.