by Justice William W. Bedsworth

I’m not sure you’re gonna see this one. My editor was concerned it might seem partisan. That’s a valid consideration. We can’t have our trade publication, dedicated to helping our members practice law, degenerating into a collection of Fort Sumpter diatribes.

So I can understand a wariness about something that appears political. And I would never write about a candidate or endorse a bond issue or otherwise take a political stand here.

But the issue I feel compelled to speak out on, the issue that makes me abandon my monthly pursuit of humor in favor of serious commentary, is not partisan. It’s the protection of our courts. Surely that rises above partisanship.

It only appears partisan because I’m commenting about something politicians are doing. But that’s because politicians are the only ones in a position to threaten the courts in the way I’m talking about. There aren’t any doctors or teachers or auto repairmen in a position to pose such a serious threat.

And since politicians are identified by their party affiliation, anything I write about an existential threat to the courts will have to take on a Democrat or a Republican. Not because I don’t like Democrats or Republicans but because they are the ones making the threat.

And I would oppose what’s being done today no matter which party was responsible. In this case, it happens to be the party that put me on the Court of Appeal.

That party’s two most prominent and visible members, Donald Trump and Elon Musk, have taken to making statements and taking actions that undermine the ability of the courts to function. Ethical restraints bar response to these by the judges, so the last line of defense—really, the only line of defense—is the lawyers.

President Trump actually issued an executive order barring the lawyers of Perkins Coie from entering any federal buildings—which of course would include courthouses—because they had advocated for clients opposed to things the federal government was doing.

It’s not partisan to say that barring lawyers who represent parties who oppose the government’s position from the courts is an existential threat to our system. It’s also un-American in the most basic way. And saying so is no more partisan than yelling, “Fire!” when you see flames consuming your neighbor’s roof.

So of course Perkins Coie went to court to challenge that executive order, and do you know what the government’s response was? It argued that national security decisions are not reviewable by the courts.¹

You don’t need to be a constitutional scholar to see where this leads. “We can bar attorneys from the courthouse, and the courts can’t do anything about it because it’s a national security decision,” pretty much ends the existence of the court system as a check and balance.

To say that this is what Thomas Jefferson and James Madison and the other framers of the Constitution had in mind insults the Founders. It is not exaggeration to say that allowing the government to bar lawyers from the courthouse and barring the courts from intervening eviscerates the constitutional system that has made us the greatest democracy the world has ever seen. And that is essentially what the federal judge said when he ruled in favor of Perkins Coie.

Which brings us to the second reason I felt I had to speak out. A couple of weeks ago, when another federal judge ruled against something the Administration wanted to do, Elon Musk called for his impeachment.

Here’s how the Orange County Register reported that: “In other posts, Musk spelled out what he had in mind. ‘When judges egregiously undermine the democratic will of the people they must be fired or democracy dies!’ As Musk sees it, ‘the only way to restore rule of the people in America is to impeach judges.’ ‘Congress must impeach the CORRUPT judges,’ he says, ‘because the people have spoken.’ When judges ‘repeatedly abuse their authority to obstruct the will of the people via their elected representatives,’ he thinks that they should be impeached.”

So the position of the Administration² is that lawyers who oppose them cannot go to court, and judges who oppose them should be removed from office and replaced with judges who don’t oppose them. That is not simply wrong, that is—to use a phrase I can’t remember ever using before and now find myself using for the second time in a thousand words—un-American.

We lawyers have to speak out about this. Who else can sound the warning claxon to the rest of the American public?

This isn’t a political issue, it’s a constitutional one. It’s an institutional one. Speaking out on it is not partisan, it’s patriotic. It’s a constitutional right whose exercise now could not be more important. I tried to think of a counterargument to demonstrate my impartiality but couldn’t come up with one that didn’t do violence to the Constitution that has served us so well.

And we have to speak out en masse. To borrow from another of the Founders, we must all hang together on this or we shall surely hang separately.

If they were willing to take on a firm as big and powerful as Perkins Coie, they won’t hesitate to come after Joe Smith, Attorney-at-Law. And if the Joe Smiths aren’t completely sure that SOMEONE has their back, they’re liable to do what Paul Weiss Rifkind Wharton & Garrison did. Paul Weiss, a pretty good East Coast equivalent of Perkins Coie, was faced with an executive order just like the one slapped on Perkins Coie. It would have barred them from government contract work, prohibited their access to federal courts, and punished them in an impressive collection of ways.

They folded. They chose the route of appeasement, bargaining with the administration and ending up with promising $40 million worth of pro bono work³ in exchange for keeping their access to the courts. Their explanation was simple: the Trump order “could easily have destroyed our firm.”

We have to make sure they’re the only firm to capitulate. And we can only do that by speaking out. Often, loudly, and together.

So I wrote this column. I’m sorry if this is not what you expected to hear from me. In forty-four years, I can count on one hand the number of times I’ve felt the need to vary from the humor column you expected when you turned to this page today.

And I’m sorry if you didn’t want to be drafted into this fight. But you’re an officer of the court. You’ve taken, probably more than once, an oath—an oath—to support and defend the Constitution.

Well, it’s time to put up or shut up.

I choose to put up. In the words of Martin Luther as he nailed the ninety-five theses to the church door, “God help me, I can do not otherwise.”

BEDS NOTES

1. If you haven’t yet begun thinking about another executive order, President Roosevelt’s 1942 Executive Order 9066, which authorized the forced evacuation of Japanese Americans on the West Coast, now would be the time to start. That same national security argument was made in support of the president’s actions then. We’ve been down that road before and it didn’t turn out well.
2. You don’t really want to take the position he’s not part of the Administration, do you?
3. Who do you think that work will benefit?

William W. Bedsworth was an Associate Justice of the California Court of Appeal until his retirement in October 2024. He's written this column for over forty years, largely just to get it out of his system. A Criminal Waste of Space won Best Column in California in 2019 from the California Newspaper Publishers Association (CNPA). His last book, Lawyers, Gubs, and Monkeys, can be obtained through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at heybeds@outlook.com.