It’s said that within a courtroom, the judge is king. And indeed, the judge is as far as lawyers and litigants are concerned, and he’s got marshals to back him up. But what happens when those same marshals are the targets of a judge’s concern?
U.S. District Judge Charles Kornmann of South Dakota levied criminal contempt charges against three senior federal law enforcement officials on Monday over an ongoing feud over his insistence that he must know whether law enforcement officials guarding his courtroom have been vaccinated against COVID-19.
As The Washington Post reports, the charges stemmed from an incident last month in which Kornmann asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom.
On the one hand, it seems like a pretty fair question to ask of the people with whom one shares a courtroom at the back end of a pandemic. Then again, when getting a vaccine has become a political act to some, the inquiry is unwelcome and considered inappropriately intrusive. But this is a courtroom, and the judge is the king. Or is he?
The marshals who were present then took three of the defendants scheduled for hearings that day out of the courthouse in what Kornmann described as a “kidnapping” that disrupted the court’s work.
Kornmann spent nearly an hour tearing into the U.S. Marshals Service for the marshals’ actions in response to his question.
The problem wasn’t merely that the marshals took offense to, and refused to answer, the question, but that they went the next step by disrupting the function of the court by removing three defendants. While calling it “kidnapping” might be a bit hyperbolic, the point is that it’s up to, or at least it’s supposed to be up to, the judge to determine when defendants are brought into and out of a courtroom, not the marshals.
“This was such an outrageous thing to do,” he said during a hearing on Monday. “Nothing like this that we could find has ever been done in this country. If it is the marshals’ position that they can override court orders, they are badly mistaken.”
There is, of course, one thing “like this” that has been done in this country, but it goes all the way back to the now-canceled Chief Justice John Marshall, when President Andrew Jackson was reputed to have said in response to Worcester v. Georgia, “John Marshall has made his decision; now let him enforce it!”
The judiciary may be the “least dangerous branch,” lack either a standing army or the power of the purse to force compliance with their orders, but they do, theoretically, have the marshals to do their bidding.
“I had always thought that the principal responsibilities of the Marshals Service was the protection of the federal judiciary,” he wrote in a letter to federal officials in March. “As it stands now, they could well be the most dangerous people in the courtroom.”
For the most part, the marshals work closely with judges. Strong bonds are formed, and marshals can be very protective of their judges. Indeed, this too has its problems, as a marshal’s word to a judge is almost impossible to challenge, so when they execute their duties outside the courtroom and squeeze between some wayward defendant’s constitutional rights, the likelihood of disputing their testimony is slim to none.
But the dirty little secret is that the judge may wear the robe, but the marshals have the guns. When the judge has an issue with the marshals, to whom will he turn to enforce his order?