Judge Susan Illston provided a great example on Friday of how to deal with the current Supreme Court in an order that the Trump admin turn over its mass-firing plans.
Until the Supreme Court or the Congress squashes them.
Because lone, lowly District Court judges should not be making national policy.
You want to oppose Trump? Win some elections. Don't abuse legal process. Federal judges do not have flaming swords, or armies of angels. They have only moral authority, a commodity that is always in perilous short supply. The present Supreme Court has the wisdom to recognize that basic fact. Judges like Illston do not.
So, it was okay while Biden was in office and the district court judges who were undeniably hand picked because of their adversity to Biden and Democrats were issuing nationwide injunctions blocking quite a bit of his actions?
No it was not ok when Biden was in office, and a number of Supreme Court justices and Republican Senators said so. It's just terrible civics. Its exponential growth during the Trump Administration makes it that much worse.
Anyone who thinks that the president and the Congress are politically motivated, and ordinary District judges are not, is impossibly naive.
So, it was okay while Biden was in office and the district court judges who were undeniably hand picked because of their adversity to Biden and Democrats were issuing nationwide injunctions blocking quite a bit of his actions?
I am so impressed with the district court judges! They are truly holding the line on constitutionality, while the SCROTUS just makes shit up or issues oneiric orders.
So Trump is politically compromised, so is the Congress, so is the Supreme Court - most of whom as Lincoln scholars can put any district judge in the grave - and the only persons with any integrity are a collection of District Court judges whose values just happened to coincide with yours.
You don't think there may be just a teensy weensey bit of arrogance and that outlook?
More likely because she's "one of Them" (a female judge placed on the bench by a Democratic president). But perhaps more to the point, Judge Illston, for better or worse, skewers the SCOTUS decision by describing it as "terse" and "inherently preliminary." I can only imagine the words coming out of Justices Alito's, Thomas', Gorsuch's, and Kavanaugh's mouths when reading this order. (I'm guessing Justices Roberts and Comey-Barrett have a modicum of decency that allows them to control their tempers thoughts.)
Thank you for this. Even as the good work of the federal judiciary often feels in vain when, if the government really doesn't like a ruling, any ruling, it can just go to mom and dad on the supreme court and get whatever it wants, often with little or no explanation.
I like your analogy. You are comparing government lawyers to little kids who when they don’t get their way at school, go to mom and dad who are always on their side.
It seems that lower court judges feel a duty not to mom and dad, or to one particular political talking point, but to fact- finding ,evidence, and the rule of law. Theycan think for themselves and within the limits of their power, they look for ways to do their job, in spite of denigration by some members of the Supreme Court. They are serving a check and balance function, thank God!
U.S. District Courts should expose the how the Supreme Court is abusing the shadow docket in a manner that empowers a lawless administration.
The only understandable explanation for the non-totally corrupt justices is that fear for their physical security and that of their families, which on a human level is understandable.
Nonetheless, if they are unwilling to dispassionately apply the law to the facts out of fear of retaliation or retribution, they should abstain from voting on cases. I fear the nature of the individuals who the Trump Administration might propose to fill their seats.
Consider Gemini AI's analysis of the situation:
Attacks and threats against judges, both federal and state, have become a significant concern, posing challenges to their personal safety and the integrity of the judicial system. These incidents range from physical violence and credible threats to cyberattacks and the spread of misinformation. The difficulty in protecting judges stems from the inherent nature of their work, which often involves making unpopular decisions, and the public accessibility that is part of their role in an open society.
The number of threats against judges has seen a dramatic increase. The U.S. Marshals Service reported that verified threats against federal judges doubled from historic norms, and threatening electronic communications increased significantly. In the past five years alone, the Marshals Service investigated over 1,000 serious threats against federal judges. These threats have, in some instances, necessitated full-time security details and even the issuance of bulletproof vests for public events. State judges also face similar risks, with examples of judges being shot or targeted with "swatting" incidents.
Challenges in Protecting Judges:
Pervasive Nature of Threats: Threats can come from disgruntled litigants, extremist groups, or individuals influenced by broader political rhetoric.
Public Accessibility: Judges, unlike some other public officials, often have a more public presence in their communities and courtrooms, making them potentially more vulnerable.
Information Availability: Personal information, especially for state judges who are often elected, can be more readily available, increasing their exposure to threats.
Resource Constraints: Adequate funding for judicial security, particularly at the state level, can be a challenge.
Difficulty in Reporting: There have been identified deficiencies in the consistent and prompt reporting of threats by judges themselves, which can hinder an effective response from protective agencies.
Coordination Issues: While agencies like the U.S. Marshals Service and the FBI are responsible for judicial security, effective coordination among different law enforcement bodies is crucial.
Role of Criticisms by Persons in the Trump Administration:
Criticisms of judges by persons in the Trump Administration have been noted as contributing to a climate that can inflame threats against the judiciary. High-ranking officials have publicly criticized judges who ruled against the administration's policies, sometimes using strong language to question their legitimacy or impartiality. For example, a top policy adviser spoke of "judicial tyranny," and there have been calls for the impeachment of judges who issued rulings not in line with the administration's agenda.
Such rhetoric, particularly when amplified through social media platforms, can lead to a surge in violent threats and calls for impeachment against judges. Online posts about U.S. judges have reportedly taken an increasingly violent turn, with significant increases in violent language and calls for impeachment targeting judges on various platforms. This can be seen as influencing extremists to attack the judiciary, leading to concerns about judicial independence and the rule of law. Judges themselves have expressed that such baseless attacks on their intelligence and integrity, especially from public figures, can make it incredibly difficult to remain steadfast in their duty to uphold the law.
How Some MAGA Types Might Act Against Judges:
The politically charged environment, fueled by strong criticism of the judiciary, can motivate individuals aligned with the "MAGA" movement to act against judges. This can manifest in:
Online Harassment and Threats: Increased online rhetoric, including violent threats and calls for impeachment, can translate into direct online harassment of judges and their families.
Physical Threats and Violence: While not directly endorsed, the heated rhetoric can be interpreted by some as justification for physical actions, as seen in the broader increase in threats against judges.
Undermining Public Trust: By actively attacking the legitimacy of judicial rulings and the motives of judges, individuals can erode public confidence in the courts, making it harder for the judiciary to function effectively and for judges to perform their duties without fear.
Advocacy for Disregard of Rulings: Some voices have openly advocated for ignoring court rulings, particularly nationwide injunctions issued by single federal judges, which can further destabilize the rule of law.
How Historically They Are Likely to Be Remembered:
Historically, judges who face significant political attacks and threats are likely to be remembered in several ways:
Defenders of the Rule of Law: They may be seen as stalwart defenders of judicial independence and the Constitution, upholding the law even in the face of intense political pressure and personal danger.
Symbols of Judicial Independence Under Duress: Their experiences will serve as case studies illustrating the vulnerability of the judiciary when its impartiality is questioned and its members are targeted.
Catalysts for Security Enhancements: The increase in threats often leads to legislative and policy changes aimed at bolstering judicial security, and these judges' experiences will be central to the historical narrative of such advancements.
Warnings Against Political Interference: Their experiences will likely be cited as cautionary tales about the dangers of political figures undermining public trust in the judiciary and the potential consequences for the stability of democratic institutions.
Profiles in Courage: In some instances, judges who continue to perform their duties impartially despite threats may be remembered as figures of courage and integrity.
The challenges posed by attacks and threats against judges are significant, impacting their ability to render fair and impartial decisions and ultimately undermining the rule of law. The rhetoric from prominent figures and the actions of those influenced by such rhetoric highlight the ongoing need for robust security measures and a renewed commitment to upholding the independence of the judiciary.
I see. You believe you have the right to define the scope and meaning of the word right with respect to women, transgenders etc. Well and good, but don't kid yourself that you are protecting democracy. You aren't. You are protecting an elitist view of right which may or may not correspond to the Constitutional tradition. Do what you want to do, but don't think you are protecting democracy. You're attacking it
Nope. I'm saying that the practice of challenging policies enacted by a democratically elected president, supported by a democratically elected Congress, in a carefully selected forum presided over by an unelected judge, is deeply undemocratic. More than that even in the short run it actually undermines the authority of the judiciary, which depends upon a respect for its neutrality and it's not political character. Clear enough?
This is just an amazing article. FWIW, I'm a never Trumper, based on a personality I consider completely unsuited for the presidency. But I do not and have never regarded him as an existential threat to the republic. He's the second coming of Andrew Jackson, which is not praise. He represents a transforming, but undisciplined populism, which is not entirely consistent, capable of doing great mischief as well as great good.
That said, I am a card carrying judicial conservative. To the extent possible, the judiciary should stay out of political processes. You do not preserve democracy by responding to a popularly elected president, with popularly elected majorities in both houses, by running to unelected judges of appropriate political persuasionto interfere with the workings of the administration.
The notion expressed in the article that the machinations of a district judge such as judge Illston are not political, whereas the reaction of appellate courts and the Supreme Court are, is incredible, unintentionally comic. It is ludicrously inconsistent. There is a reason why litigants have chosen convenient forums. It is precisely because they expect the right political outcome.
I do not see the present Supreme Court as being reactionary. Instead, it views the role of the judiciary in the way it was viewed for two centuries, before the legal elites of the society decided that a crisis justified a complete abandonment a valuable judicial traditions of restraint. It's the Supreme Court that is being Conditionally correct, not its critics.
The solution to Trump is not to race to friendly judges and obstruct democratic processes in the name of protecting democracy (a position both oxymoronic and truly moronic at the same time). It's to win elections. That seems impossible for the Democratic Party at this time, because of the various bizarre ideological positions it is taken, the transgender issue being the most obvious. Litigating in the face of a public mandate is, however, the worst possible reaction - precisely because it is anti-democratic. The solution is political reform in the Party itself, as difficult as that seems.
If losing an election meant losing all your rights, the constituencies making up the Republican party would have been vanquished multiple times this century. Yes Democrats, or anybody opposed to MAGA, need to win elections. But that can't possibly be the end of the story. Otherwise the first thing the winning party of an election would do with their mandate is make sure that no one else is ever able to win future elections.
Awful lot of women of childbearing age would disagree with you. As would transgender folks. As would legal immigrants and refugees. And we could go on but I won't, having made my point for the rest of the room.
As a former federal clerk and long federal criminal defense practice, I have seldom read a district court's order that filled me with such joy.
On monday, that could get a lot easier for district judges..
https://substack.com/profile/50584679-joe-alter/note/c-136882065?utm_source=notes-share-action&r=u47dz
Very well done Judge Illston!
Excellent exposition! And a good template for other judges (and their clerks) to follow.
I am hopeful all judges are watching and learning!
Until the Supreme Court or the Congress squashes them.
Because lone, lowly District Court judges should not be making national policy.
You want to oppose Trump? Win some elections. Don't abuse legal process. Federal judges do not have flaming swords, or armies of angels. They have only moral authority, a commodity that is always in perilous short supply. The present Supreme Court has the wisdom to recognize that basic fact. Judges like Illston do not.
So, it was okay while Biden was in office and the district court judges who were undeniably hand picked because of their adversity to Biden and Democrats were issuing nationwide injunctions blocking quite a bit of his actions?
No it was not ok when Biden was in office, and a number of Supreme Court justices and Republican Senators said so. It's just terrible civics. Its exponential growth during the Trump Administration makes it that much worse.
Anyone who thinks that the president and the Congress are politically motivated, and ordinary District judges are not, is impossibly naive.
So, it was okay while Biden was in office and the district court judges who were undeniably hand picked because of their adversity to Biden and Democrats were issuing nationwide injunctions blocking quite a bit of his actions?
I am so impressed with the district court judges! They are truly holding the line on constitutionality, while the SCROTUS just makes shit up or issues oneiric orders.
So Trump is politically compromised, so is the Congress, so is the Supreme Court - most of whom as Lincoln scholars can put any district judge in the grave - and the only persons with any integrity are a collection of District Court judges whose values just happened to coincide with yours.
You don't think there may be just a teensy weensey bit of arrogance and that outlook?
Thank you for the clear, concise, thorough explication.
Substack needs an I LOVE THIS button.
Hello
Nice that the court recognizes whether behavior is “good faith” when SCOTUS, behind an opaque shadow docket, chooses otherwise.
No doubt SCOTUS, on “emergency” appeal, will overturn Judge Illston’s decision because she was wearing the wrong shoes.
More likely because she's "one of Them" (a female judge placed on the bench by a Democratic president). But perhaps more to the point, Judge Illston, for better or worse, skewers the SCOTUS decision by describing it as "terse" and "inherently preliminary." I can only imagine the words coming out of Justices Alito's, Thomas', Gorsuch's, and Kavanaugh's mouths when reading this order. (I'm guessing Justices Roberts and Comey-Barrett have a modicum of decency that allows them to control their tempers thoughts.)
“Luckily” SCOTUS won’t have to explain in a shadow docket “opinion” — a great hiding place.
LOL
I have been reading a lot of district court decisions lately, for some reason. The speed and thoroughness with which they act is truly impressive.
So clear. Thank you so much
Terrific post (and terrific order)!
Thank you for this. Even as the good work of the federal judiciary often feels in vain when, if the government really doesn't like a ruling, any ruling, it can just go to mom and dad on the supreme court and get whatever it wants, often with little or no explanation.
I like your analogy. You are comparing government lawyers to little kids who when they don’t get their way at school, go to mom and dad who are always on their side.
It seems that lower court judges feel a duty not to mom and dad, or to one particular political talking point, but to fact- finding ,evidence, and the rule of law. Theycan think for themselves and within the limits of their power, they look for ways to do their job, in spite of denigration by some members of the Supreme Court. They are serving a check and balance function, thank God!
U.S. District Courts should expose the how the Supreme Court is abusing the shadow docket in a manner that empowers a lawless administration.
The only understandable explanation for the non-totally corrupt justices is that fear for their physical security and that of their families, which on a human level is understandable.
Nonetheless, if they are unwilling to dispassionately apply the law to the facts out of fear of retaliation or retribution, they should abstain from voting on cases. I fear the nature of the individuals who the Trump Administration might propose to fill their seats.
Consider Gemini AI's analysis of the situation:
Attacks and threats against judges, both federal and state, have become a significant concern, posing challenges to their personal safety and the integrity of the judicial system. These incidents range from physical violence and credible threats to cyberattacks and the spread of misinformation. The difficulty in protecting judges stems from the inherent nature of their work, which often involves making unpopular decisions, and the public accessibility that is part of their role in an open society.
The number of threats against judges has seen a dramatic increase. The U.S. Marshals Service reported that verified threats against federal judges doubled from historic norms, and threatening electronic communications increased significantly. In the past five years alone, the Marshals Service investigated over 1,000 serious threats against federal judges. These threats have, in some instances, necessitated full-time security details and even the issuance of bulletproof vests for public events. State judges also face similar risks, with examples of judges being shot or targeted with "swatting" incidents.
Challenges in Protecting Judges:
Pervasive Nature of Threats: Threats can come from disgruntled litigants, extremist groups, or individuals influenced by broader political rhetoric.
Public Accessibility: Judges, unlike some other public officials, often have a more public presence in their communities and courtrooms, making them potentially more vulnerable.
Information Availability: Personal information, especially for state judges who are often elected, can be more readily available, increasing their exposure to threats.
Resource Constraints: Adequate funding for judicial security, particularly at the state level, can be a challenge.
Difficulty in Reporting: There have been identified deficiencies in the consistent and prompt reporting of threats by judges themselves, which can hinder an effective response from protective agencies.
Coordination Issues: While agencies like the U.S. Marshals Service and the FBI are responsible for judicial security, effective coordination among different law enforcement bodies is crucial.
Role of Criticisms by Persons in the Trump Administration:
Criticisms of judges by persons in the Trump Administration have been noted as contributing to a climate that can inflame threats against the judiciary. High-ranking officials have publicly criticized judges who ruled against the administration's policies, sometimes using strong language to question their legitimacy or impartiality. For example, a top policy adviser spoke of "judicial tyranny," and there have been calls for the impeachment of judges who issued rulings not in line with the administration's agenda.
Such rhetoric, particularly when amplified through social media platforms, can lead to a surge in violent threats and calls for impeachment against judges. Online posts about U.S. judges have reportedly taken an increasingly violent turn, with significant increases in violent language and calls for impeachment targeting judges on various platforms. This can be seen as influencing extremists to attack the judiciary, leading to concerns about judicial independence and the rule of law. Judges themselves have expressed that such baseless attacks on their intelligence and integrity, especially from public figures, can make it incredibly difficult to remain steadfast in their duty to uphold the law.
How Some MAGA Types Might Act Against Judges:
The politically charged environment, fueled by strong criticism of the judiciary, can motivate individuals aligned with the "MAGA" movement to act against judges. This can manifest in:
Online Harassment and Threats: Increased online rhetoric, including violent threats and calls for impeachment, can translate into direct online harassment of judges and their families.
Physical Threats and Violence: While not directly endorsed, the heated rhetoric can be interpreted by some as justification for physical actions, as seen in the broader increase in threats against judges.
Undermining Public Trust: By actively attacking the legitimacy of judicial rulings and the motives of judges, individuals can erode public confidence in the courts, making it harder for the judiciary to function effectively and for judges to perform their duties without fear.
Advocacy for Disregard of Rulings: Some voices have openly advocated for ignoring court rulings, particularly nationwide injunctions issued by single federal judges, which can further destabilize the rule of law.
How Historically They Are Likely to Be Remembered:
Historically, judges who face significant political attacks and threats are likely to be remembered in several ways:
Defenders of the Rule of Law: They may be seen as stalwart defenders of judicial independence and the Constitution, upholding the law even in the face of intense political pressure and personal danger.
Symbols of Judicial Independence Under Duress: Their experiences will serve as case studies illustrating the vulnerability of the judiciary when its impartiality is questioned and its members are targeted.
Catalysts for Security Enhancements: The increase in threats often leads to legislative and policy changes aimed at bolstering judicial security, and these judges' experiences will be central to the historical narrative of such advancements.
Warnings Against Political Interference: Their experiences will likely be cited as cautionary tales about the dangers of political figures undermining public trust in the judiciary and the potential consequences for the stability of democratic institutions.
Profiles in Courage: In some instances, judges who continue to perform their duties impartially despite threats may be remembered as figures of courage and integrity.
The challenges posed by attacks and threats against judges are significant, impacting their ability to render fair and impartial decisions and ultimately undermining the rule of law. The rhetoric from prominent figures and the actions of those influenced by such rhetoric highlight the ongoing need for robust security measures and a renewed commitment to upholding the independence of the judiciary.
I see. You believe you have the right to define the scope and meaning of the word right with respect to women, transgenders etc. Well and good, but don't kid yourself that you are protecting democracy. You aren't. You are protecting an elitist view of right which may or may not correspond to the Constitutional tradition. Do what you want to do, but don't think you are protecting democracy. You're attacking it
Are you saying that a judge whose opinion is different from that of the Supreme Court is attacking democracy?
Nope. I'm saying that the practice of challenging policies enacted by a democratically elected president, supported by a democratically elected Congress, in a carefully selected forum presided over by an unelected judge, is deeply undemocratic. More than that even in the short run it actually undermines the authority of the judiciary, which depends upon a respect for its neutrality and it's not political character. Clear enough?
This is just an amazing article. FWIW, I'm a never Trumper, based on a personality I consider completely unsuited for the presidency. But I do not and have never regarded him as an existential threat to the republic. He's the second coming of Andrew Jackson, which is not praise. He represents a transforming, but undisciplined populism, which is not entirely consistent, capable of doing great mischief as well as great good.
That said, I am a card carrying judicial conservative. To the extent possible, the judiciary should stay out of political processes. You do not preserve democracy by responding to a popularly elected president, with popularly elected majorities in both houses, by running to unelected judges of appropriate political persuasionto interfere with the workings of the administration.
The notion expressed in the article that the machinations of a district judge such as judge Illston are not political, whereas the reaction of appellate courts and the Supreme Court are, is incredible, unintentionally comic. It is ludicrously inconsistent. There is a reason why litigants have chosen convenient forums. It is precisely because they expect the right political outcome.
I do not see the present Supreme Court as being reactionary. Instead, it views the role of the judiciary in the way it was viewed for two centuries, before the legal elites of the society decided that a crisis justified a complete abandonment a valuable judicial traditions of restraint. It's the Supreme Court that is being Conditionally correct, not its critics.
The solution to Trump is not to race to friendly judges and obstruct democratic processes in the name of protecting democracy (a position both oxymoronic and truly moronic at the same time). It's to win elections. That seems impossible for the Democratic Party at this time, because of the various bizarre ideological positions it is taken, the transgender issue being the most obvious. Litigating in the face of a public mandate is, however, the worst possible reaction - precisely because it is anti-democratic. The solution is political reform in the Party itself, as difficult as that seems.
If losing an election meant losing all your rights, the constituencies making up the Republican party would have been vanquished multiple times this century. Yes Democrats, or anybody opposed to MAGA, need to win elections. But that can't possibly be the end of the story. Otherwise the first thing the winning party of an election would do with their mandate is make sure that no one else is ever able to win future elections.
No one has lost any rights.
Awful lot of women of childbearing age would disagree with you. As would transgender folks. As would legal immigrants and refugees. And we could go on but I won't, having made my point for the rest of the room.
I will put it on my calendar
What is an 'in camera review'?