As federal courts repeatedly rule in favor of individuals and groups challenging Trump administration policies, the administration has intensified its attacks on federal courts, putting judicial independence under threat like never before. But the judiciary is not simply sitting back and accepting its fate. Instead, the Judicial Conference and the Administrative Office of the United States Courts—the policymaking arm and central support entity of the federal judiciary, respectively— have recently taken four quiet but important steps to reassert the judiciary’s independence and its constitutional role as a coequal branch of government: issuing support for judges who speak publicly in defense of judicial independence, requesting real property authority from Congress, publicly calling for judicial security funding and publicly calling for funding for the Criminal Justice Act.

Over the past year, individuals harmed by Trump administration policies have turned to the federal courts to stop numerous illegal or unconstitutional Trump administration actions, including President Trump’s attempted firing of Federal Reserve Governor Lisa Cook, its deployment of National Guard troops in American cities and its unilateral imposition of tariffs. Many courts have responded to these challenges by faithfully applying the law to temporarily or permanently restrain Trump administration policies, including repeatedly blocking unlawful immigration enforcement actions, National Guard deployments and funding freezes. In so doing, the federal judiciary is fulfilling the precise role the Founding Fathers envisioned for it: constraining unlawful attempts by a political branch to violate individual rights, statutes and the Constitution.

In response to rulings against the Trump administration, aggrieved officials have taken unprecedented steps to threaten the independence of the federal judiciary. President Trump publicly called for the impeachment of a judge who blocked an impending deportation, leading to a rare public rebuke from Supreme Court Chief Justice John Roberts, who continues to condemn the “personally directed hostility” that judges currently face. The administration sued every single federal district court judge in Maryland over an order by that court also halting deportations. (The suit was dismissed by a Trump-appointed judge, but the administration has appealed.) The Trump administration also fired two interim U.S. Attorneys mere hours after each was lawfully appointed to the position by a panel of federal judges. And the administration has arguably defied or otherwise failed to meaningfully comply with several orders from federal courts, most notably by failing to pause an ongoing deportation despite a judge ordering the administration to do so. 

Despite those attacks, the judiciary is pushing back and asserting its authority. 

The Judicial Conference’s new ethics advisory opinion

The U.S. Judicial Conference’s Committee on Codes of Conduct regularly publishes advisory opinions on “ethical issues that are frequently raised or have broad application” throughout the judiciary. In February, the Committee published Advisory Opinion No. 118, which addresses public speaking and commentary by judges. It concludes, in part, that judges are free to “speak or write about the independence of the judiciary, or advocate for the rule of law in general, including why both values are crucial to our system of government.” That includes “measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law.”

Though judges are already permitted to speak publicly about legal issues of public concern, historically they have been hesitant to do so because of the importance of maintaining public confidence in the fairness and impartiality of the courts. For instance, in response to questions about abortion during his Senate confirmation hearing, Justice David Souter declined to answer because doing so “would go far to dispel the promise of impartiality in approaching this issue, if it [came] before [him].” 

Although the Committee’s new advisory opinion is framed as merely helping judges apply existing guidelines on public speaking, in reality it is, as Professor Steve Vladeck said, a “meaningful intervention” from a typically “risk-averse” institution that is trying to navigate unprecedented threats to its independence. In practice, the opinion permits judges to speak out–to legal professionals, law students and the general public–about those threats with confidence that doing so is in line with judicial rules of conduct. 

The Judicial Conference’s decision to publish Advisory Opinion No. 118 in this political moment was, by Judicial Conference standards, a bold step in support of judicial independence. It gives cover to judges to speak publicly against attacks on judicial independence. Moreover, as recent international lessons teach us, this type of public engagement and advocacy may be necessary to defend against democratic backsliding and rebuild trust in democratic institutions.

For instance, in 2020, judges from across the European Union marched in Poland in support of judicial independence. That peaceful protest was a response to the Polish government’s attacks on judicial independence and Polish democracy, which spanned 2015-2023. Poland has since experienced a democratic resurgence,  with Polish judges playing a critical public-facing role, traveling across the country and attending events like music festivals to engage directly with the public and rebuild popular support for democracy, judicial independence and the rule of law. The Judicial Conference’s advisory opinion now makes clear that the door is open for American judges to engage in similar public-facing advocacy to rebuild support for judicial independence in the United States.

Real property authority

In February, the Judicial Conference wrote to Congress to request real property authority–the ability to directly manage the courthouses and other buildings where the federal courts provide services. Currently, courthouses and other judicial buildings are managed by the General Services Administration (GSA), an executive branch agency that essentially serves as the landlord for the federal judiciary. GSA has publicly opposed the judiciary’s request. But according to the Judicial Conference, over more than a decade courthouses and other judicial buildings “have accumulated a growing backlog of $8.3 billion worth of critical repairs,” leaving federal courthouses “in crisis.”

CREW noted last year that GSA’s control over courthouses, including over building maintenance, could be an avenue for the executive branch to chip away at judicial independence by depriving judges and court staff of the usable office space and other resources needed to effectively and safely conduct judicial business. That is particularly concerning under an administration that has exhibited longstanding hostility towards courts and judges. While the Judicial Conference letter notes that the backlog of repairs is the result of “decades of inadequate management and oversight” by GSA, it also argues that “[t]he recent unilateral actions and reorganization of GSA have only exacerbated these conditions.”

Keeping the judiciary dependent on the executive branch to provide even the most basic building maintenance and repairs is a risk to the federal court system’s ability to do its job. Courthouses that do not receive the maintenance they need—to elevators, HVAC systems and other basic essentials—can pose health, safety and security risks to litigants, criminal defendants, judges and other court personnel. In the most extreme circumstances, courthouses could become temporarily or permanently unusable, depriving local residents of access to legal justice. 

Transitioning real property authority to the judiciary would require close collaboration with and oversight by Congress, but would help insulate the judiciary from the political whims of the executive branch and ensure that federal courthouses receive the maintenance and repairs they desperately need. By formally requesting that Congress transfer real property authority over judicial buildings from GSA to the judicial branch, the federal judiciary is taking an important step towards bolstering its independence.

Security funding

Over the past year, the Judicial Conference has been particularly vocal about its need for increased security funding for lower court judges and courthouses, making multiple public requests throughout 2025 for those funding increases. Those requests were motivated by a rise in threats against judges. As Chief Justice Roberts noted at the end of 2024, the number of threats against judges has tripled in the past decade. In Fiscal Year 2025 alone, 564 threats were made against 396 different federal judges. In recent years, state judges in Wisconsin and Maryland have been murdered, as was the son of a New Jersey federal judge.

The increase in threats that federal judges have faced in recent years is compounded by the fact that the United States Marshals Service (USMS), the entity that provides security for federal judges other than Supreme Court justices, is housed in the Department of Justice (DOJ) in the executive branch, rather than in the judiciary itself. As CREW noted last year, leaving the executive branch in charge of judicial security is fraught. The executive branch could direct USMS to use resources to support other law enforcement activities, as was the case last year when DHS authorized USMS to assist in immigration enforcement, possibly limiting USMS’s capacity to provide judicial security, its primary legal responsibility. Worse still, the executive branch could theoretically direct USMS to withdraw security for judges altogether—a possibility some federal judges worried about after President Trump revoked security details from former aides facing ongoing threats. This structural problem spurred Sen. Cory Booker and Rep. Eric Swalwell to introduce the MARSHALS Act, which would transfer USMS from the executive branch to the judiciary.

While USMS remains under the control of the executive branch, the Judicial Conference’s repeated public advocacy for increased judicial security funding has worked: Congress passed a spending bill earlier this year which provides for a marked increase in judicial security funding. Robust judicial security ensures that judges can freely and safely issue rulings in accordance with law, rather than rule in a way that they think will keep themselves and their families safe. 

Criminal Justice Act funding

As the United States Supreme Court established in a series of cases throughout the 20th century, culminating in the 1963 case of Gideon v. Wainwright, the Constitution guarantees every criminal defendant the right to effective legal counsel, regardless of the defendant’s ability to pay. In other words, if a criminal defendant can’t afford a defense lawyer, the government has to provide them one. 

In the federal courts, under the Criminal Justice Act (CJA), each district court is responsible for creating a system that provides this guaranteed representation, and for reimbursing the attorneys appointed to do so. Appointed attorneys may include federal public defenders as well as private attorneys known as CJA panel attorneys. Today, about 90% of defendants in federal criminal cases are represented by public defenders or panel attorneys under the CJA. These attorneys ensure that criminal defendants are provided with meaningful representation as required by the Constitution. 

However, for years the CJA has been plagued by funding shortfalls, leaving public defenders and panel attorneys under-resourced and overstretched. That funding crisis came to a head last year, when the money Congress appropriated to pay CJA panel attorneys officially ran out, forcing panel attorneys to work without pay for months. 

Several months into this lapse, in at least one district CJA panel attorneys informed the court that they would no longer be accepting new appointments. In another, a court granted a defendant’s motion to dismiss the prosecution against him because the defendant’s CJA panel attorney had not been paid in months. The court explained that “[t]he systematic and ongoing failure of the Government to fund CJA-appointed attorneys for the past five months has created an indefensible situation in which CJA defense counsel…are expected to competently represent and defend their clients despite a complete lack of resources to do so.” The failure to pay CJA attorneys, the court held, violated the “Defendant’s constitutional right to an attorney who is obligated to zealously and adequately represent him.”

These examples demonstrate how a lack of funding for defense representation poses a threat to the judicial system. The American legal system is adversarial: it relies on two parties each diligently, competently and zealously arguing in favor of their respective positions. As Representative Emanuel Celler emphasized in 1964 during debate on the CJA while arguing for compensation for defense attorneys, “[i]t is essential to have counsel representing these indigent defendants who are skilled enough to pit themselves against astute prosecutors.” A 1963 committee convened by Attorney General Robert F. Kennedy agreed, explaining that the properly functioning adversarial system “should be structured and financed in a manner reflecting its public importance.” That is true at every level of the judicial system, which is why the Judicial Conference recently authorized a new entity specifically dedicated to public defense at the Supreme Court level. If a defense lawyer is unable to provide effective counsel, then the adversarial system falls apart. 

As with security funding, the judiciary’s public advocacy for increased funding for public defenders and CJA panel attorneys has paid off. The judicial spending bill passed by Congress earlier this year provides funding for public defenders and CJA panel attorneys that is approximately in line with the nearly 22% increase requested by the judiciary. That increase will help give criminal defense attorneys the resources they need to zealously represent clients who could not otherwise afford a lawyer, and will help ensure that the Constitution’s guarantee of legal representation for all is upheld.

By publishing its new ethics advisory opinion, requesting real property authority and advocating for sufficient security and CJA funding, the federal judiciary is taking important steps to defend its independence. In so doing, the judiciary is ensuring it can continue to serve its constitutional role as an equal branch of government and as a cornerstone of American democracy.