It is not often discussed publicly for reasons of privacy and in hopes of not encouraging more of the same type behavior, but it has been common in terrorism cases since 1993–indeed, even before then in cases involving Croation and other terrorists–for judges and other trial participants to need protection. It’s no mystery why.

Part of the evidence implicating El Sayyid Nosair (who murdered Rabbi Meir Kahane in 1990) in the terrorist conspiracy that led to the bombing of the World Trade Center in 1993 involved his (unsuccessful) efforts to orchestrate the murder of the New York State judge who sentenced him to prison. In the 1980’s, I investigated Sicilian mafia groups–who have for years targeted judicial officials in Italy, and have killed prominent ones–who talked about importing these methods to America. In 1989, federal Judge Robert Vance in Atlanta was killed by a letter bomb over his handling of a case. The Westchester County Courthouse in New York is named after federal Judge Richard Daronco, who was murdered in 1988 by an unhappy and unstable litigant. Many prosecutors offices around the country–federal and state–have for many, many years routinely investigated serious threats against federal judges and their families. When I ran a satellite USAO in New York (1999-2003), we had several cases of threats against federal judges and their families–and, before I got there, the wife of one of our judges was poisoned and nearly died from chocolates that were intended for the judge. I could go on and on. Did Mark’s 2005 book factor in all those cases too?

Jeffrey Rosen’s intimation–drawing from the Schiavo case and the recent murder of a judge’s husband and mother in Chicago–that threats on the judiciary are a recent phenomenon is inaccurate. Big cases have ALWAYS brought out the nutters–and they are encouraged in part by liberal heavyweights in acadmia, the civil liberties lobby and the media who insist that any sensible curbing of free expression would violate the First Amendment, and who fret that curbing the advocacy of violence would somehow deprive us of worthy assertions of poltical dissent. Culturally, what is happening today–with judges and others–is much more about declining norms of civility and the cult treatment of celebrity than it is about the modern significance of the judiciary and court cases.

Judicial decision-making has always been important in our history, and has always prompted controversy–in many instances more heated than what we have today. In the early 19th century, the Jeffersonian Democrats impeached Justice Samuel Chase over his disgraceful handling of the Alien & Sedition act cases. At the end of the War of 1812, then-General Andrew Jackson, while administering martial law in New Orleans, had a judge arrested and marched out of the city limits when the judge tried to issue a writ of habeas corpus for someone Jackson’s troops had arrested. Justice Taney’s Dred Scott decision was a catalyst for the Civil War, and President Lincoln nearly had him arrested when he tried to issue habeas writs interfering with the prosecution of the war. FDR famously got the Supreme Court to buy on to the New Deal by threatening to pack the court (the so-called “stitch in time that saved nine”). For Rosen to act like we are in some kind of unprecedented age for criticism of, scrutiny of, and threats to the judiciary fails to take account of the rich history on this topic.