As The Lower Courts Revolt Against Chief Justice Roberts, Justice Kavanaugh Rises To The Moment
The revolution started with the Boston TRO Party. Who can end it?
With each new day, the revolt in the lower courts grows. What started with the Boston TRO Party has now spread across the nation. Now, more than a dozen judges talked to Lawrence Hurley of NBC News. The message is loud and clear. The inferior court judges are frustrated with the cursory orders from the emergency docket. Moreover, they blame Chief Justice Roberts for not standing up for the judiciary--and indeed fault Roberts's own rulings as legitimating Trump's criticisms. Here are the key excerpt from the article:
Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried the practice is undermining the judiciary at a sensitive time.
Some judges believe the Supreme Court, and in particular Chief Justice John Roberts, could be doing more to defend the integrity of their work as President Donald Trump and his allies harshly criticize those who rule against him and as violent threats against judges are on the rise.…
Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration's criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.
"It is inexcusable," a judge said of the Supreme Court justices. "They don't have our backs." ….
With tensions so high, four of the judges said they believe the Supreme Court and specifically Roberts, the head of the judiciary, should do more to defend the courts.
The Supreme Court, a second judge said, is effectively assisting the Trump administration in "undermining the lower courts," leaving district and appeals court judges "thrown under the bus." ….
The Supreme Court, that judge said, is effectively endorsing Miller's claims that the judiciary is trying to subvert the presidency.
"It's almost like the Supreme Court is saying it is a 'judicial coup,'" the judge said.…
"Judges in the trenches need, and deserve, well-reasoned, bright-line guidance," a judge said. "Too often today, sweeping rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide."
Ten of the judges, both Republican and Democratic appointees, agreed the court's lack of explanation is a problem. Judges must follow Supreme Court precedent, but they can find it difficult to assess what the justices are asking them to do.…
A judge who spoke to NBC News expressed frustration that judges' role in the judicial system is being undermined by the Supreme Court's frequent interventions, before there has been extensive litigation and, potentially, a trial.
"It's very discouraging," the judge said. "We are operating in a bit of a vacuum."….
Roberts, who generally does not seek public attention, has long been known as an institutionalist who looks out for the interests of the Supreme Court, but several judges wondered whether that instinct extends to lower courts.
"He should be doing everything he can internally to insist on ordinary process," the judge who has received threats said in reference to the emergency cases. Roberts' end-of-year report was "not enough," the judge added.
Another judge said: "He hasn't been completely absent, and he's trying to do the best he can. I wish he would be a little bit more assertive and aggressive."
"If the entire foundation falls out from under your house, it does no good to have a really well-insulated attic," the judge said. "It sure would be nice if someone had our backs."
Kudos to Judge Burroughs in Boston for calling out Justice Gorsuch publicly and by name. All of these other judges, who have life tenure, feel the need to hide behind the cloak of anonymity. Same for the judges who anonymously tell the press they will not take senior status, even they were eligible long before Emil Bove.
One more quote stuck out:
A judge appointed by President Barack Obama said that while the Supreme Court could do more to explain itself, some lower court judges had been out of line in blocking Trump policies.
"Certainly, there is a strong sense in the judiciary among the judges ruling on these cases that the court is leaving them out to dry," he said. "They are partially right to feel the way they feel."
But, the judge added, "the whole 'Trump derangement syndrome' is a real issue. As a result, judges are mad at what Trump is doing or the manner he is going about things; they are sometimes forgetting to stay in their lane."
Truth. At an event today at SMU, I joked that the federal judiciary health insurance policy should provide special treatment for TDS. There must be some kind of rehab.
There is much to say here, but let me tie together a few disparate threads. This story is the latest in a series of leaks to the press about Chief Justice Roberts. First, there was the leak from the Judicial Conference. Remember that Chief Justice Roberts did not take seriously Judge Boasberg's concern that President Trump would defy orders. Roberts mused that Trump was nice to him at the State of the Union Address. I suspect Jeb(!) thought that response was tone deaf. Second, there was a leak about how Roberts presided over the Smithsonian Board. (The Times reported that only a three--person executive committee of the Board, not including the Chief, approved a letter that the likely-to-be-fired director sent to President Trump; but who appointed that committee?) Third, there has been a never-ending series of leaks from the Supreme Court, first to Joan Biskupic and more recently to Jodi Kantor. Plus, there were a host of leaks about the lackluster internal investigation performed about the Dobbs leak. Justice Alito publicly spoke out and said he thought he knew who leaked it, but the Court said nothing.
At this point, people do not even remember why I first proposed that Roberts should resign: it was the leaks. In August 2020, I wrote that if Roberts can't stop the leaks from his Court, it would be a reflection of his failed leadership, and he should step down. In hindsight, I was onto something. And now, the leaks are not just coming from the Supreme Court, but from every entity under Roberts's control: the lower courts, the Judicial Conference, and even the Smithsonian Institution.
In any other context, when a leader loses the confidence of every facet of his organization, he steps down or is fired. Of course, Roberts is not going to be removed. But I think after twenty-years, even he should be able to see that his leadership has not been successful. He came to the Court with the agenda of reducing 5-4 decisions and increasing the Court's "legitimacy" as an institution. How has that goal worked out? Now, his subordinates are publicly speaking out against him.
Roberts did not comment to NBC News, but he had an unnamed employee offer a comment:
A federal judiciary employee familiar with Roberts' institutional role said there are various reasons he is restrained from speaking out more. If he did, the employee said, the force of what he said would be diluted through repetition, and, with litigation pending in lower courts, he could face accusations of bias or calls for his recusal when he comments on specific cases.
"The chief justice has spoken out strongly against attacks on judges in various contexts, but he has been appropriately judicious in his statements, focusing on institutional norms and not personalities," the employee said.
"The chief justice can't be the public spokesperson against the administration and still do his job of deciding cases, including matters that involve the administration," the person added.
And wouldn't you know it, Robert Dow the Chief's counselor, made very similar remarks at the Sixth Circuit conference on Wednesday.
Dow pointed to other periods in American history when the judiciary loomed large in political debate and sometimes encountered threats of violence over unpopular rulings. "This isn't the first time that we've had to navigate times similar to the times we're in now. It doesn't make it any less scary for all of us who have to navigate that."
Roberts "is very aware of these threats," Dow said.
But he also suggested the chief justice is wary about being pulled into political struggles where the judiciary is at a significant disadvantage compared to the White House and Congress.
"The problem for our branch is that we have a very tiny megaphone, and if we use our megaphone too often, we risk losing what I would say is the long game, and the long game is to preserve our independence," said Dow, who was appointed to the federal bench by President George W. Bush in 2007.
Sound familiar? I wonder who the "federal judicial employee" was?
The truth is that Roberts never actually faces the press. He releases poorly drafted statements that seldom actually resolve the problem at hand. Instead, he trots out Bob Dow to give statements on--and apparently off--the record that likewise fail to address concerns.
So if Roberts is not speaking up for the Court? Who is? NBC News pointed out the obvious:
So far, the only recent public defense from the court has come from conservative Justice Brett Kavanaugh, who said at a legal conference in Kansas City, Missouri, last month that the court has been "doing more and more process to try to get the right answer" and offers more explanation in such cases than it did in the past. In the birthright citizenship cases, for example, the court heard oral arguments and issued a 26-page opinion explaining the decision.
One reason for keeping emergency decisions short, Kavanaugh said, is that the justices have to make decisions but do not necessarily want to pre-judge how cases will ultimately be decided when they come back to the court via the normal appeals process.
"There can be a risk … of making a snap judgment and putting it in writing," even though it might not reflect the court's ultimate conclusion further down the line, he said.
While the Supreme Court wrestles internally with some of the criticism, lower court judges are increasingly focused on their own safety.
I have celebrated Justice Kavanaugh's recent opinions, which explain why the Court is doing what he is doing. Everyone cheers for Justice Barrett's CASA majority, but the most influential opinion should be Justice Kavanaugh's concurrence. He is giving coherence to the "ineterim" dockets when the Chief wants to pretend that nothing out of the ordinary is happening. And he is speaking publicly to reinforce those messages. Right now, Justice Kavanaugh is the only member of the Court rising to the moment.
Today, Kavanaugh continued the mission at the Sixth Circuit conference:
"It's a difficult job that each of us has," he said, as he opened remarks during a luncheon panel at the annual Sixth Circuit Judicial Conference in Memphis, "particularly the trial judges who operate alone." (In the federal system, district courts are the trial courts.)
He called trial-court judges "the front lines of American justice" and thanked them for helping to "preserve and protect the Constitution and the rule of law of the United States."
Justice Kavanaugh's remarks came at a time of increased strain on the Supreme Court's relationship with district court judges, who have often moved swiftly to block President Trump's policies with sweeping preliminary orders, issued before a case has been heard in full. The Supreme Court in turn in June imposed new limits on the lower courts' power to issue orders that affect the whole country, known as universal injunctions.
The justices have also intervened in more than a dozen individual cases in ways that at least temporarily lift blocks imposed by lower court judges that would have stopped Mr. Trump's policies from being implemented while their legality is litigated.
Kavanaugh offered conciliatory remarks about the Chief:
Kavanaugh also came to the defense of Chief Justice John Roberts, who has pushed back publicly on occasion against Trump's attacks on individual judges while seeking to avoid having the courts dragged into a political mudfight that might only fuel perceptions of a politicized judiciary.
"I think the chief justice … has done a great job about picking his spots appropriately over the last seven years, since I've been there, defending the independence of the judiciary, and I think all of us need to do that together," Kavanaugh said during an exchange with 6th Circuit Judges Joan Larsen and Andre Mathis.
Kavanaugh suggested Roberts was right not to engage every time a politician launches a heated rhetorical attack on a judge.
"The tone matters," Kavanaugh said. "We're modeling behavior for everyone. Again, we all fall short at times, but I think redoubling our efforts on tone, especially when the tone around us is in the public sphere, in the political world, on all sides, is loud, it's probably important."
And while Kavanaugh insisted the collegiality at the court is "very strong," he also suggested Roberts often has to mediate differences among the justices on how the court is run. Kavanaugh compared that to "trying to herd cats."
"Let's just say, it's not easy," Kavanaugh said.
Today I spoke at the SMU FedSoc chapter. My plan was to talk about some recent Supreme Court cases. But I called an audible and instead talked about the lower court revolt. (I decided to do so about 5 minutes before we began.) I said something that I wasn't planning to say, and didn't think I would ever say, but now feel might be right.
Chief Justice Roberts should step down and President Trump should elevate Justice Kavanaugh to the Chief Justice position. Being Chief Justice is not a permanent sinecure. Judges have life tenure, not a life sentence. Justice Kavanaugh might be the only person who can steer the Court through this current moment. Roberts cannot.
I think Kavanaugh can push the Court to grant cert before judgment more often, hold oral argument, and issue reasoned emergency docket opinions. No more one-paragraph John Roberts blue plate specials. Roberts is so concerned about saying too much, that he invariably says too little. And Justice Kavanaugh has the media savvy to speak intelligently to the American public, and not hide behind pretentious press releases and cryptic comments at conferences.
Chief Justice Roberts would no doubt worry who President Trump might replace him with. But I like to think that Roberts would be assured if Kavanaugh picked up the mantle. Again, I have been a vigorous Kavanaugh critic over the years. I had, have, and will have my differences with him. But there are much bigger issues at play.