District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker
If democracy survives, it’ll be because a handful of sleep-deprived federal judges refused to let it die on their watch. Federal district judges are overworked, under-resourced, lied to, and gaslit by contemptuous government lawyers, beset by violent threats — and still somehow remain the nation’s last functioning firewall against authoritarianism. That’s the best way to sum up the judges’ panel from the Society for the Rule of Law summit this week. Three retired judges — Judge Paul Grimm of the District of Maryland, Judge Nancy Gertner of the District of Massachusetts, and Judge Michael Luttig of the Fourth Circuit — spoke for an hour about the dire challenges facing the judiciary. The portrait is bleak, but the district bench continues to perform heroic work.
Moderator Ben Wittes of Lawfare — who quipped after the fact that the whole panel was off the record — set the tone off the top, asking the judges to weigh in on his sense that “the district bench has been somewhere between excellent and spectacular.” Judge Grimm described their work as the “line in the sand,” Judge Gertner applauded the district courts for “meet[ing] the moment in a way that I think is extraordinary.” Judge Luttig, as the appellate representative, said of the judges wading through the mountains of litigation spawned by the administration’s chaotic policies:
They have brought further honor to the lower federal bench, at a time — the most important moment in all of American history. When the nation needs the federal judiciary, more than it has ever needed it, and will ever need it again. To the judge. And to the court. The federal judiciary — the lower federal courts — have honored their oath and they will continue to honor their oath.
I suppose one benefit of the Trump administration’s selective harassment of people in historically Democratic jurisdictions is that we don’t need to know how judges in Amarillo or Fort Pierce might rule. So let’s just celebrate the district courts generally and not dig deeper.
And they’re having to do their part for the rule of law while dealing with a federal government exhibiting outright contempt for both the law and the judges themselves. Judge Luttig, the reigning Cassandra of the collapse of the rule of law, placed the blame squarely on the absence of good faith within this Justice Department:
The arguments that are being made… by the Department of Justice attorneys under Pam Bondi are contemptuous. Not just of the Constitution and the rule of law, but contemptuous of the federal courts, and even, if not especially, contemptuous of the individual judges that are hearing the cases. Not only has this never happened in all of American history, not one argument, but the arguments that these people are making to the federal courts has ever been made in American history, dripping with the contempt that these arguments are.
It’s also a government that is bald-faced lying to federal judges. Judge Gertner described the challenges when judges can’t count on the parties to tell the truth:
It’s not just an issue of the arguments they’re making. They’re lying. They are misrepresenting things. One of the things I thought after Trump was elected, and when the political debate made it into the courts, one of the things we know about courts is that there’s a level of civility. That then lawyers, true to their oaths, will not lie, will not misrepresent, will not say they do x and do y. What is the most shocking of all — at a time when you’re always shocked — is that that’s not true. That’s not true with respect to the Department of Justice lawyers. They will say x, they will do y, and recent whistleblower accounts suggest that they are openly and brazenly misrepresenting to the court. The system fractures what it happens.
She cited a Just Security study detailing 43 cases where the DOJ made serious misrepresentations to the courts.
Unfortunately, the district bench isn’t getting the support it needs from some on the appellate bench and none at all from the Supreme Court. With fewer resources, district courts are churning out massive opinions in the middle of the night against artificial government deadlines, racing against a government that’s proven willing to disregard its own pledges to ram through its wishes. Meanwhile appellate judges auditioning for Trump’s Supreme Court papabile list muse about whether or not Donald Trump should have the unreviewable power to send SEAL Team 6 to assassinate anyone in an inflatable frog costume.
And the Supreme Court continues to drop unsigned two-paragraph orders before heading to bed. For all the issues with the Supreme Court’s expanding use of its shadow docket to effect practical change without the benefit of argument or a full record, Judge Luttig adds that these opinions are, on their face, illegitimate:
The Supreme Court has no power at all in our system and government, except that power that comes to it by virtue of his reasoned, opinions of constitutional law. Whenever the Supreme Court is acting without opinions of law — at all — let alone, reasoned opinions of law. It is acting illegitimately, period. It doesn’t have the power of the purse. It doesn’t have the power of the sword. The only power it has, and the only power that it has to wield on behalf of the American people is the power of its persuasion.
And yet, the conservative majority of the Supreme Court grows increasingly agitated that the district courts aren’t taking these Post-it note opinions and elevating their vibes over established precedent. Judge Gertner pointed to the Harvard grants case, where Judge Allison Burroughs drew upon Justice Jackson’s admonition that these shadow docket opinions are nothing more than Calvinball and that there’s no existing rationale for treating those opinions as precedent. Or, to put it the way Judge Gertner did in a recent article, the shadow docket has “all the formality of notes on a napkin.”
Why is the Court so hot over district courts following these shadow docket opinions as if they’re precedent? Judge Luttig noted that “there’s no logic to it at all, but there’s thinking to it, and that’s what we need to be concerned about.” For an administration focused on upending the rule of law as quickly as possible, converting the shadow docket into a rapid-fire precedent machine capable of tossing thousands of pages of considered lower court opinions in an instant is an essential tool. I’ve previously suggested that the Supreme Court majority also hopes to hedge its bets this way — commanding lower courts to keep issuing Trump-friendly rulings without actually disturbing precedent so they can return under the next Democratic administration and declare “just kidding, good thing we never actually overruled these cases!” No one on the panel went quite that far, but they did point out that the Supreme Court’s actions sought to push off having to grapple with the substance for years, which certainly backs that up.
This reckless shadow docket behavior inspired 12 judges to call out the Supreme Court for its role in driving violent threats against the judiciary. “The level of personal attacks and threats against them has been beyond anything that you could imagine,” Judge Grimm explained. “I think if the American public actually heard some of those threats, that they would be appalled. And you would not know — for a nanosecond — from their actual rulings, that the judge was appointed by either a Democratic or a Republican president.” He proceeded to quote one specific threat a federal judge received and it succeeded in appalling the audience. “We are going to rape your daughter in front of you, cut her head off so the blood splatters on you, then rape you, and kill you,” he recounted the threat. “We’re at the point where the Marshals Service has said, that there are over, I think, this year it’s almost up to 500 credible threats against U.S. district judges.”
Of course, Chief Justice Roberts offered his thoughts these threats in his annual report this year, in much the same way one might respond to a fire by calling in a noise complaint on the trucks. Judge Grimm notes that nothing has really improved since that report. Instead, the administration continues to bash lower court judges publicly — as Judge Cullen noted in a recent opinion — and the Supreme Court only takes time out of their busy vacation junkets to write concurrences blasting judges for not doing their part to follow the Court’s lead in placating the administration.
It’s difficult to describe Judge Luttig as anything but furious at this point. The ideals that he’s devoted his life to upholding have become a punchline to the Department of Justice and a supermajority of the Supreme Court. He summarized the crisis — the lying, the contempt, the abdication of the Supreme Court — by describing the impossible situation the courts are in when there’s no mechanism to hold the lawless accountable.
Every day of the week, for the past 10 months, judges like Judge Gertner and Judge Grimm are facing the President of the United States, and Attorney General of the United States… lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened. And these people who are trying to do their job under those circumstances, are looking up at the Supreme Court of the United States, who they know, to a virtual certainty, would reverse them in a second if they held Donald Trump in contempt.
The only thing standing between American democracy and complete collapse are a bunch of constantly threatened district judges and their clerks sorting through government gaslighting to write opinions at 2 a.m. because someone has to. The foundation is, for now, holding.
Everything built on top of it is either crumbling or actively trying to knock it all down.
Earlier: Rule Of Law Conservatives Awkwardly Embrace #Resistance
Trump Can Now Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs
Supreme Court’s Shadow Docket Scam Collides With Reality
In A Bold Move, Federal Judges Are Calling Out The Supreme Court’s Bullsh*t
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