The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Even With A Skewed Sample, The New York Times Survey Of Federal Judges Reveals A Brewing Judicial Crisis
And once again, you know who is to blame.
The New York Times surveyed nearly four-hundred federal judges, asking them about their views of the Supreme Court's emergency docket. I agree with co-blogger Jon Adler that the sample was skewed, and the small number of negative responses likely came from those judges who are "most unhappy with or critical of the Supreme Court." The biggest takeaway is that most judges ignored the survey, as they should have.
Still, I think the limited results reflects a brewing judicial crisis. After a years-long effort to delegitimize the Supreme Court, members of the Judiciary are now voicing these same concerns in off-the-record interviews, and from the bench.
Some of these judges may have simply lost their way, such as Judge Young in Boston. But other judges such as Judge Burroughs are speaking on these issues publicly.
The Times offered this smattering of quotes:
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."
I am almost certain the "war zone" is referring to the District of Massachusetts, which has gotten reversed many times.
Let's take a step back. The federal judiciary has a fairly well-defined hierarchy. Each federal district court has a Chief Judge, and each federal circuit court has a Chief Judge. If a member of the judiciary has a grievance with the Supreme Court, he can share that message with his Chief Judge. And, presumably, the Chief Judge can raise the message up the flagpole to the Judicial Conference. And who presides over the Judicial Conference? The Chief Justice of the United States.
We know from a leak that Chief Judge Boasberg raised concerns from other judges to Chief Justice Roberts. And what was Roberts's response? He downplayed the concerns, and said that Trump thanked him at the State of the Union for administering the oath.
If Chief Justice Roberts has adequately addressed the concerns of lower-court judges, I doubt those judges would feel compelled to talk to the press. I doubt the Chief is doing enough privately to assuage concerns. I have also heard from many judges over the years that the Chief runs the Judicial Conference with an iron fist. There is a discussion list, and any item not on the list cannot be discussed. There is no open-ended discussion. Indeed, the ill-fated judicial reassignment policy was not subject to any debate. We saw a glimpse of this parliamentary stranglehold in a piece about Roberts as chancellor of the Smithsonian. Perhaps in normal times, these Roberts Rules of Order make for an efficient process. But in times of crisis, the Judicial Conference must be a deliberative body that reflects the views of the entire judiciary, and not the agenda of the Chief Justice.
The above speaks to what the Chief has done in private. But I can say with a high degree of confidence that the Chief is not doing enough publicly to assuage concerns. Roberts maintains the same playbook of issuing short, summary orders that fail to adequately explain the Court's reasoning. Perhaps Roberts has the same view as Justice Barrett, and is afraid of "locking in" the Court on the merits.
Frankly, at this stage, we need to stop talking about "locking in." The emergency docket ruling is the whole ballgame. If the Court allows the administration to block funding, no one cares if the money is ultimately paid out in three years. NGOs and other non-profits will go out of business while waiting for the litigation to percolate. If the Court allows the administration to deport certain aliens, those individuals will be sent to countries that have no connection with. No one cares if the Court ultimately rules those people can be readmitted in a few years. If thousands of civil servants are laid off, they cannot sit idly for years waiting for claims to proceed. They will need to find other employment. And so on. This concern about "locking in" is so myopic at the present moment that Justice Barrett really should stop repeating the mantra. No one finds it persuasive.
Still, to Barrett's credit, she at least says something. Then again, she has a book to sell. Roberts says nothing at all. He just wants to pretend it is still 2006 and he has the opportunity to unite the Court with fewer 5-4 decisions. That ship sailed around the time he transmogrified a tax into a penalty.
The federal judiciary has needed new leadership for sometime, but the defection in the ranks is making this need more palpable.
Let me use a sports example. I went to Penn State, and have long been a Nittany Lions fan. At the start of this season, Penn State was ranked as high as #2 in the nation. Expectations were high for a national championship. But after three shaky victories, Penn State lost three games in a row, including two defeats to very weak teams. Penn State has lots of talent, but is badly underperforming. Fans are now chanting that James Franklin, the longtime coach, should be fired. How did Franklin respond? He took blame: "It's 100% on me." Of course, Franklin is not playing offense or defense, but the buck stops with him. Thankfully, Franklin does not have life tenure, and he can be removed. [Update: Shortly after I wrote this post, Penn State fired Coach Franklin.]
The buck stops with the Chief Justice. He can only cast one vote as a Justice, but as the swing vote, he will usually decide the fate of the Court. He is in the majority more than 95% of the time. And in an administrative capacity, Roberts has near-complete power over the structure of the judicial apparatus. If Roberts is unable to adequately address the concerns of the judiciary in private conference or through his public decisions, he should admit the problem is of his own making. These lower court judges are not blaming Trump or Stephen Miller or Pam Bondi. They are looking right at the Supreme Court. As a leader, Roberts should hold a summit with every judge who has been summarily reversed on the emergency docket to hear their concerns. There will be no discussion list. But I doubt he would brook that breach of decorum.
I have written that Justice Kavanaugh may be the right person for the moment. To his credit, he is trying to explain why the Court is doing what it is doing on the emergency docket. And he favors granting cert before judgment, followed by expedited oral argument. I am sure there are and will be things that I disagree with Justice Kavanaugh on. But unless the federal judiciary can resume regular order, the path forward is bleak.
