During most political disputes, there is a point at which the line is crossed. You can feel it, even if no one can agree on exactly where it was. For many people who follow the law, that moment came on a Thursday in late July, when James Percival, the general counsel of the Department of Homeland Security, put up a list of federal judges ranked from best to worst. Not comments on the decisions they made. A list. Titled “Worst of the Worst: District Court Judges.”
There is more to Percival than meets the eye. He is the top lawyer at one of the most important federal agencies in the country. The Senate confirmed him last December, after a hearing that raised some questions. And the list he released wasn’t subtle—it was based on DHS’s existing “Worst of the Worst” list of deported criminal immigrants, which he said on purpose. The same thing was the point. There are four sitting federal judges who are named, ranked, and visually linked to the same group as violent offenders.
In some ways, what happened next was expected, and in other ways, it was really scary. A group of experienced trial lawyers and judges across the country called the American Board of Trial Advocates issued a formal condemnation. Their article about Percival was seen as a way to “bully independent jurists” and they warned that it “served no legitimate administrative purpose.”” Philip Pro, a retired federal judge from Nevada, called the posts “irresponsible” and brought up a concern that seemed less like legal theory and more like real life: that calling out judges by name on social media spreads the message to more people who might act on it.
That worry is not vague. Last fiscal year, the US Marshals Service got 564 threats against federal judges. That’s more than the 509 threats they got the year before. At a hearing in Congress, Justice Elena Kagan said that the atmosphere around the courts was “dangerous.” She also said that district judges, who Percival was going after, don’t usually have security around the clock. The judges do. A lot of the time, district judges work alone.
From his side, Percival has pushed back hard. He told Fox News that the campaign is not meant to scare people, but to teach them. His point was that people hear about judicial activism but don’t realize it’s mostly done by a small group of repeat offenders who are “forum shopping,” or filing lawsuits in different places on purpose to find judges who will side with them. Technically, that argument has some truth to it. It’s real to shop on forums. Depending on your political views, judicial overreach is a real thing. But it’s hard to separate the way he made that argument from what it said.
Someone from DHS said that the posts were “a factual review of judicial decisions and their real-world consequences.” That defense makes sense until you look at it again: the title, the comparison to criminals who were deported, and the use of social media to spread the word. When facts are shown in a certain way, they are no longer just facts.
It’s important to remember that this did not happen in a vacuum. Todd Blanche, who is acting attorney general, used the word “war” to describe the relationship between the administration and the federal courts. Republicans in the House have put in letters of impeachment against judges who made decisions that were against the government. Trump himself called the justices on the Supreme Court “fools.” Percival’s list is not a one-off act of anger, but part of a pattern.
The institutional weight behind this moment is what makes it feel important. It is one thing for a senior official to post on their own personal account. To use ABOTA’s words, the general counsel of DHS, who posts from a place of “pronounced authority and influence,” is not the same thing. The platform is important. The title is important. The framing is very important.
There is still no clear evidence that this changes anything. It’s still court time. The judges are still at work. But the pressure that is building on the federal courts right now is unlike anything that most lawyers have seen in the last few years. And once it’s out there, a “Worst of the Worst” list stays there.
