In an unprecedented move, Senate Judiciary Chairman Chuck Grassley and House Judiciary Chairman Jim Jordan jointly signed a letter to Chief Justice John Roberts demanding he take action to rein in district court and, perhaps, appeals court judges who are anonymously slamming the Supreme Court. At issue is an October story in The New York Times headlined, Federal Judges, Warning of ‘Judicial Crisis,’ Fault Supreme Court’s Emergency Orders. You can read an analysis of the story here: Federal Judges Blame Trump and SCOTUS for a Problem They Created; We Need to Fix It Now. This is how the letter from Grassley and Jordan characterizes the story.
According to the reporting, The Times contacted more than 400 of the almost 1,500 federal judges and asked them to respond to a questionnaire about the use of the emergency docket by the Supreme Court of the United States. The Times specifically included all the judges from “districts that have handled at least one legal challenge in a major piece of Mr. Trump’s agenda.” Of the 400 judges contacted by The Times, sixty-five judges responded to the survey, and forty-seven of the responses indicated that the “Supreme Court had been mishandling its emergency docket since Mr. Trump returned to office.” The Times further reported:
In interviews, federal judges called the Supreme Court’s emergency orders “mystical,” “overly blunt,” “incredibly demoralizing and troubling” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts were in the midst of a “judicial crisis.” The Times explained that “the judges responded to the questionnaire and spoke in interviews on the condition of anonymity so they could share their views candidly, as lower court judges are governed by a complex set of rules that include limitations on their public statements.” The Times went on to characterize these responses and interviews as “overwhelmingly critical of the Supreme Court” and reflective of “extraordinary tensions within the judiciary.”
The letter rightly notes, "We are deeply concerned that these public attacks on the court from sitting federal judges damage the public’s faith and confidence in our judicial system. When judges call into question the legitimacy of their own branch of government, they erode faith in the institution itself."
The letter is long overdue, but sadly misses the mark because it doesn't accurately describe the problem.
Yes, we are in the midst of a judicial crisis. But it isn't the one the survey respondents whinged about. We are in a judicial crisis brought on by judges who don't like the president. They don't like him using his electoral mandate to reshape the Executive Branch in ways they oppose, either politically or philosophically, and they are torqued because the Supreme Court isn't going along with their stalling tactics. Without the SCOTUS emergency docket, lower court decisions could remain in effect for years before getting to the Supreme Court.
For instance, it took the Supreme Court 15 months to hear the "Muslim Travel Ban" case during Trump's first term; see The Trump Travel Ban Probably Survived the Supreme Court – RedState. It took them an additional two months to finally announce the decision. SCOTUS ruled in Trump's favor, but a frivolous lawsuit had delayed his policy by nearly a year and a half.
They aren't even bothering to hide it anymore. The TDS-infected lower court judges seem to be in a state of mutiny. J. Michael Luttig is a retired U.S. Appeals Court judge and fixture in GOP establishment circles. After leaving the bench, he was a leading light of the Never Trumpers, calling President Trump a clear and present danger to American democracy." He was also one of the guys who made the effort to disqualify Trump from running in 2024 under the 14th Amendment's insurrection provisions seem vaguely serious instead of outright laughable. Here he is on a podcast hosted by leftist legal analyst Dahlia Lithwick. This is how she promotes the episode.
“The Chief Justice… is presiding over the end of the rule of law in America”. That quote did not come from host Dahlia Lithwick, but this week’s guest, former Federal Circuit Court Judge and George H. W. Bush appointee, J Michael Luttig. On this week’s show, Judge Luttig explains the unprecedented split we’re seeing between the federal courts and the highest court in the land in response to Trump’s lawlessness on everything from tariffs, to due process, to deploying the National Guard, and what it all means for the future of American democracy.
"They [the federal courts] have had it, and they will not tolerate this. It doesn't matter anymore what the Supreme Court says, the lower courts are determined to support and defend the Constitution according to their oath, and that's what they're going to do."
This is the link to the podcast.
The Atlantic article Mehta refers to is one in which Luttig claims Trump is planning to become a real, no-sh** king. (If that means Trump is going to ship him off to a re-education camp in Montana, I could be convinced to get behind the idea).
When taken in context with The New York Times article that prompted the Grassley-Jordan letter, I don't think he's engaging in hyperbole. I think he's familiar with the thinking of a lot of judges, and even hints that their rulings against Trump are coordinated.
Federal district courts have repeatedly meddled in areas where Congress has said it has no business. For instance, Congress has set up a process for employees to challenge dismissals or disciplinary actions. That process must run before the case can be heard in federal court. And yet, here we are. Likewise, contract and grant terminations have their own court system, but agenda-driven district court judges have constantly stepped into an area where they have no jurisdiction to meddle on behalf of favored entities. Most egregious have been the immigration cases where federal judges have illegally ignored immigration judges, their rulings, and the Court of Immigration Appeals.
Federal judges have no authority to direct how the government spends money during a shutdown.
Several judges have intervened to undermine President Trump's Constitutional authority to deploy National Guardsmen to protect federal employees and property. Not only have they ignored the letter of the law, they are claiming that their view of what constitutes an emergency situation is superior to that of the president.
A federal judge attempted to manage the daily work schedule of Gregory Bovino, a Chief Patrol Agent at U.S. Customs and Border Protection, to appear in court at 5:45 p.m. every weekday “to report on the use of force activities for each day.” See: 7th Circuit Puts the Kibosh on Judge's Micromanagement of ICE Operations in Chicago. The same judge continues to specify the equipment and tactics used by federal agents in Chicago; see Judge orders federal agents in Chicago to limit use of force on peaceful protesters. No authority exists for this level of micro-management.
Another federal judge has ruled that it isn't sufficient that White House press briefings have closed captioning available online and in person; they must have a sign language interpreter for that audience, which understands sign language but is incapable of reading English.
If one reads Politico, one could not be blamed for thinking that our judicial system is a democracy where the number of judges ruling against something means it can't be done; see, for example, More than 100 judges have ruled against the Trump admin’s mandatory detention policy.
What is happening is obvious. This is "massive resistance" on the order of Governor Orval Faubus blocking the schoolhouse door in Little Rock. These judges aren't stupid, but they are possibly corrupt and definitely more in the tradition of Roland Freisler than anything arising in America.
As Grassley and Jordan note, many of these actions seem to be bald-faced violations of the Code of Conduct for United States Judges. "We urge you to consider the appropriateness of these public yet anonymous comments and whether they breach the ethical obligations of all federal judges. While we do not yet know the full extent of the comments or who the judges are, we remain convinced that judges should not be going to the press to undermine and denigrate the Supreme Court.” While they are at it, they should also look into a pattern of district court judges leveraging their rulings to harm the administration for political gain.
