{"id":135837,"date":"2025-10-24T17:20:40","date_gmt":"2025-10-25T01:20:40","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/10\/24\/district-judges-fight-to-save-the-rule-of-law-while-doj-and-supreme-court-snicker\/"},"modified":"2025-10-24T17:20:40","modified_gmt":"2025-10-25T01:20:40","slug":"district-judges-fight-to-save-the-rule-of-law-while-doj-and-supreme-court-snicker","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/10\/24\/district-judges-fight-to-save-the-rule-of-law-while-doj-and-supreme-court-snicker\/","title":{"rendered":"District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker"},"content":{"rendered":"

If democracy survives, it\u2019ll 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 \u2014 and still somehow remain the nation\u2019s last functioning firewall against authoritarianism. That\u2019s the best way to sum up the judges\u2019 panel from the Society for the Rule of Law summit<\/a> this week. Three retired judges \u2014 Judge Paul Grimm of the District of Maryland, Judge Nancy Gertner of the District of Massachusetts, and Judge Michael Luttig of the Fourth Circuit \u2014 spoke for an hour about the dire challenges facing the judiciary. The portrait is bleak, but the district bench continues to perform heroic work.<\/p>\n

Moderator Ben Wittes of Lawfare<\/em> \u2014 who quipped after the fact that the whole panel was off the record<\/a> \u2014 set the tone off the top, asking the judges to weigh in on his sense that \u201cthe district bench has been somewhere between excellent and spectacular.\u201d Judge Grimm described their work as the \u201cline in the sand,\u201d Judge Gertner applauded the district courts for \u201cmeet[ing] the moment in a way that I think is extraordinary.\u201d Judge Luttig, as the appellate representative, said of the judges wading through the mountains of litigation spawned by the administration\u2019s chaotic policies:<\/p>\n

\n

They have brought further honor to the lower federal bench, at a time \u2014 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 \u2014 the lower<\/em> federal courts \u2014 have honored their oath and they will continue to honor their oath.<\/p>\n<\/blockquote>\n

I suppose one benefit of the Trump administration\u2019s selective harassment of people in historically Democratic jurisdictions is that we don\u2019t need to know how judges in Amarillo<\/a> or Fort Pierce<\/a> might rule. So let\u2019s just celebrate the district courts generally and not dig deeper.<\/p>\n

And they\u2019re 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<\/a>, placed the blame squarely on the absence of good faith within this Justice Department:<\/p>\n

\n

The arguments that are being made\u2026 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.<\/p>\n<\/blockquote>\n

It\u2019s also a government that is bald-faced lying to federal judges. Judge Gertner described the challenges when judges can\u2019t count on the parties to tell the truth:<\/p>\n

\n

It\u2019s not just an issue of the arguments they\u2019re making. They\u2019re 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\u2019s 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 \u2014 at a time when you\u2019re always shocked \u2014 is that that\u2019s not true. That\u2019s 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.<\/p>\n<\/blockquote>\n

She cited a Just Security study detailing 43 cases where the DOJ made serious misrepresentations to the courts<\/a>. <\/p>\n

Unfortunately, the district bench isn\u2019t 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<\/a> against artificial government deadlines, racing against a government that\u2019s proven willing to disregard its own pledges to ram through its wishes. Meanwhile appellate judges auditioning for Trump\u2019s Supreme Court papabile<\/em> 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<\/a>.<\/p>\n

And the Supreme Court continues to drop unsigned two-paragraph orders before heading to bed. For all the issues with the Supreme Court\u2019s 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:<\/p>\n

\n

The Supreme Court has no power at all in our system and government, except<\/strong> 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 \u2014 at all \u2014 let alone, reasoned opinions of law. It is acting illegitimately, period. It doesn\u2019t have the power of the purse. It doesn\u2019t 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.<\/p>\n<\/blockquote>\n

And yet, the conservative majority of the Supreme Court grows increasingly agitated that the district courts aren\u2019t 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\u2019s admonition that these shadow docket opinions are nothing more than Calvinball<\/a> and that there\u2019s 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 \u201call the formality of notes on a napkin<\/a>.\u201d<\/p>\n

Why is the Court so hot over district courts following these shadow docket opinions as if they\u2019re precedent? Judge Luttig noted that \u201cthere\u2019s no logic to it at all, but there\u2019s thinking<\/em> to it, and that\u2019s what we need to be concerned about.\u201d 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\u2019ve previously suggested that the Supreme Court majority also hopes to hedge its bets this way \u2014 commanding lower courts to keep issuing Trump-friendly rulings without actually disturbing precedent so they can return under the next Democratic administration and declare \u201cjust kidding, good thing we never actually<\/em> overruled these cases!<\/a>\u201d No one on the panel went quite that far, but they did point out that the Supreme Court\u2019s actions sought to push off having to grapple with the substance for years, which certainly backs that up.<\/p>\n

This reckless shadow docket behavior inspired 12 judges to call out the Supreme Court for its role in driving violent threats against the judiciary<\/a>. \u201cThe level of personal attacks and threats against them has been beyond anything that you could imagine,\u201d Judge Grimm explained. \u201cI think if the American public actually heard some of those threats, that they would be appalled. And you would not know \u2014 for a nanosecond<\/em> \u2014 from their actual rulings, that the judge was appointed by either a Democratic or a Republican president.\u201d He proceeded to quote one specific threat a federal judge received and it succeeded in appalling the audience. \u201cWe 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,\u201d he recounted the threat. \u201cWe\u2019re at the point where the Marshals Service has said, that there are over, I think, this year it\u2019s almost up to 500 credible threats against U.S. district judges.\u201d <\/p>\n

Of course, Chief Justice Roberts offered his thoughts these threats in his annual report this year<\/a>, 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 \u2014 as Judge Cullen noted in a recent opinion<\/a> \u2014 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\u2019s lead in placating the administration.<\/p>\n

It\u2019s difficult to describe Judge Luttig as anything but furious at this point. The ideals that he\u2019s 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 \u2014 the lying, the contempt, the abdication of the Supreme Court \u2014 by describing the impossible situation the courts are in when there\u2019s no mechanism to hold the lawless accountable.<\/p>\n

\n

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\u2026 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,\u00a0to a virtual certainty<\/strong>, would reverse them in a second if they held Donald Trump in contempt.<\/p>\n<\/blockquote>\n

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. <\/p>\n

Everything built on top of it is either crumbling or actively trying to knock it all down.<\/p>\n

Earlier<\/strong>: Rule Of Law Conservatives Awkwardly Embrace #Resistance<\/a>
Trump Can Now Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs<\/a>
Supreme Court\u2019s Shadow Docket Scam Collides With Reality<\/a>
In A Bold Move, Federal Judges Are Calling Out The Supreme Court\u2019s Bullsh*t<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker<\/a> appeared first on Above the Law<\/a>.<\/p>\n

If democracy survives, it\u2019ll 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 \u2014 and still somehow remain the nation\u2019s last functioning firewall against authoritarianism. That\u2019s the best way to sum up the judges\u2019 panel from the Society for the Rule of Law summit<\/a> this week. Three retired judges \u2014 Judge Paul Grimm of the District of Maryland, Judge Nancy Gertner of the District of Massachusetts, and Judge Michael Luttig of the Fourth Circuit \u2014 spoke for an hour about the dire challenges facing the judiciary. The portrait is bleak, but the district bench continues to perform heroic work.<\/p>\n

Moderator Ben Wittes of Lawfare<\/em> \u2014 who quipped after the fact that the whole panel was off the record<\/a> \u2014 set the tone off the top, asking the judges to weigh in on his sense that \u201cthe district bench has been somewhere between excellent and spectacular.\u201d Judge Grimm described their work as the \u201cline in the sand,\u201d Judge Gertner applauded the district courts for \u201cmeet[ing] the moment in a way that I think is extraordinary.\u201d Judge Luttig, as the appellate representative, said of the judges wading through the mountains of litigation spawned by the administration\u2019s chaotic policies:<\/p>\n

\n

They have brought further honor to the lower federal bench, at a time \u2014 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 \u2014 the lower<\/em> federal courts \u2014 have honored their oath and they will continue to honor their oath.<\/p>\n<\/blockquote>\n

I suppose one benefit of the Trump administration\u2019s selective harassment of people in historically Democratic jurisdictions is that we don\u2019t need to know how judges in Amarillo<\/a> or Fort Pierce<\/a> might rule. So let\u2019s just celebrate the district courts generally and not dig deeper.<\/p>\n

And they\u2019re 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<\/a>, placed the blame squarely on the absence of good faith within this Justice Department:<\/p>\n

\n

The arguments that are being made\u2026 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.<\/p>\n<\/blockquote>\n

It\u2019s also a government that is bald-faced lying to federal judges. Judge Gertner described the challenges when judges can\u2019t count on the parties to tell the truth:<\/p>\n

\n

It\u2019s not just an issue of the arguments they\u2019re making. They\u2019re 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\u2019s 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 \u2014 at a time when you\u2019re always shocked \u2014 is that that\u2019s not true. That\u2019s 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.<\/p>\n<\/blockquote>\n

She cited a Just Security study detailing 43 cases where the DOJ made serious misrepresentations to the courts<\/a>. <\/p>\n

Unfortunately, the district bench isn\u2019t 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<\/a> against artificial government deadlines, racing against a government that\u2019s proven willing to disregard its own pledges to ram through its wishes. Meanwhile appellate judges auditioning for Trump\u2019s Supreme Court papabile<\/em> 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<\/a>.<\/p>\n

And the Supreme Court continues to drop unsigned two-paragraph orders before heading to bed. For all the issues with the Supreme Court\u2019s 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:<\/p>\n

\n

The Supreme Court has no power at all in our system and government, except<\/strong> 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 \u2014 at all \u2014 let alone, reasoned opinions of law. It is acting illegitimately, period. It doesn\u2019t have the power of the purse. It doesn\u2019t 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.<\/p>\n<\/blockquote>\n

And yet, the conservative majority of the Supreme Court grows increasingly agitated that the district courts aren\u2019t 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\u2019s admonition that these shadow docket opinions are nothing more than Calvinball<\/a> and that there\u2019s 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 \u201call the formality of notes on a napkin<\/a>.\u201d<\/p>\n

Why is the Court so hot over district courts following these shadow docket opinions as if they\u2019re precedent? Judge Luttig noted that \u201cthere\u2019s no logic to it at all, but there\u2019s thinking<\/em> to it, and that\u2019s what we need to be concerned about.\u201d 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\u2019ve previously suggested that the Supreme Court majority also hopes to hedge its bets this way \u2014 commanding lower courts to keep issuing Trump-friendly rulings without actually disturbing precedent so they can return under the next Democratic administration and declare \u201cjust kidding, good thing we never actually<\/em> overruled these cases!<\/a>\u201d No one on the panel went quite that far, but they did point out that the Supreme Court\u2019s actions sought to push off having to grapple with the substance for years, which certainly backs that up.<\/p>\n

This reckless shadow docket behavior inspired 12 judges to call out the Supreme Court for its role in driving violent threats against the judiciary<\/a>. \u201cThe level of personal attacks and threats against them has been beyond anything that you could imagine,\u201d Judge Grimm explained. \u201cI think if the American public actually heard some of those threats, that they would be appalled. And you would not know \u2014 for a nanosecond<\/em> \u2014 from their actual rulings, that the judge was appointed by either a Democratic or a Republican president.\u201d He proceeded to quote one specific threat a federal judge received and it succeeded in appalling the audience. \u201cWe 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,\u201d he recounted the threat. \u201cWe\u2019re at the point where the Marshals Service has said, that there are over, I think, this year it\u2019s almost up to 500 credible threats against U.S. district judges.\u201d <\/p>\n

Of course, Chief Justice Roberts offered his thoughts these threats in his annual report this year<\/a>, 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 \u2014 as Judge Cullen noted in a recent opinion<\/a> \u2014 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\u2019s lead in placating the administration.<\/p>\n

It\u2019s difficult to describe Judge Luttig as anything but furious at this point. The ideals that he\u2019s 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 \u2014 the lying, the contempt, the abdication of the Supreme Court \u2014 by describing the impossible situation the courts are in when there\u2019s no mechanism to hold the lawless accountable.<\/p>\n

\n

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\u2026 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,\u00a0to a virtual certainty<\/strong>, would reverse them in a second if they held Donald Trump in contempt.<\/p>\n<\/blockquote>\n

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. <\/p>\n

Everything built on top of it is either crumbling or actively trying to knock it all down.<\/p>\n

Earlier<\/strong>: Rule Of Law Conservatives Awkwardly Embrace #Resistance<\/a>
Trump Can Now Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs<\/a>
Supreme Court\u2019s Shadow Docket Scam Collides With Reality<\/a>
In A Bold Move, Federal Judges Are Calling Out The Supreme Court\u2019s Bullsh*t<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

If democracy survives, it\u2019ll 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 \u2014 and still somehow remain the nation\u2019s last functioning firewall against authoritarianism. That\u2019s the best way to […]<\/p>\n","protected":false},"author":3,"featured_media":135808,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-135837","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/10\/Headshot-300x200-E5Cxjb.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135837","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=135837"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135837\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/135808"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=135837"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=135837"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=135837"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}