From the Contrarian

Even Federal Court Judges Know the MAGA Justices are Out of Control

The Roberts Court makes obvious the need for serious reform

JENNIFER RUBIN SEP 8

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Lower court federal judges appointed by presidents of both parties have demonstrated admirable spine in knocking down Donald Trump’s grossly unconstitutional moves. Moreover, they have educated the public by candidly rebuking the government for misleading courts, evading their rulings, and attacking the judicial branch.

The Contemplation of Justice sits on the west side of the United States Supreme Court building

Just last week, federal judges struck down Trump’s attempts to extort Harvard (by trampling on its First Amendment rights), deploy national guard troops for civilian law enforcement, and invoke the Alien Enemies Act to justify summarily deporting immigrants. To top it off, a district court in San Francisco held that Homeland Security Secretary Kristi Noem illegally suspended temporary status for more than 600,000 Venezuelans and Haitians.

Moreover, we saw a batch of federal judges openly slam the Supreme Court, which has repeatedly overturned lower courts’ orders (which have temporarily impeded Trump’s constitutional arson) without full argument and briefing via the so-called shadow docket. In an unprecedented display of frustration and anger, nearly a dozen federal court judges (appointees of both Democratic and Republican presidents including Trump) went to NBC News with their complaints:

Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.

And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.

Even more telling, the lower court judges accused the justices of enabling Trump’s attacks on the judiciary. Instead of reasoned Supreme Court opinions, they get terse per curiam opinions that suggest “they did shoddy work and are biased against Trump.” Detailing the threats lower court judges now face, they pointed the finger at Chief Justice John G. Roberts, Jr. and the rest of the MAGA majority. One judge argued that the Supreme Court “is effectively assisting the Trump administration in ‘undermining the lower courts,’ leaving district and appeals court judges ‘thrown under the bus.’” Worse, with one exception, Roberts has remained mum while Trump threatens, insults, and smears judges who rule against him.

Perhaps this sort of open revolt from lower court judges will break through the veil of arrogance that seems to insulate Roberts and the other MAGA rubber-stampers from entirely justified criticism. The majority’s anti-textual decisions (most vividly, the sweeping grant of criminal immunity to the president and destruction of voting rights statutes) have distorted the Framers’ constitutional vision.

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In Trump 2.0, the MAGA justices repeatedly have manipulated the “emergency docket” to effectively green light one Trump executive power grab after another, without regard to findings of fact below or the extreme harm inflicted on plaintiffs (e.g., NIH grantees, public employee unions). In doing so they have diminished the authority of lower federal judges and left them exposed to threats and smears, as the lower court judges attested.

Like an abusive spouse, Justice Neil Gorsuch has tried to make the lower courts into the bad guys. Supreme Court legal expert Steve Vladeckrecounted that in a recent opinion, Gorsuch “accused the lower courts in [three cases] of open defiance of earlier rulings by the Supreme Court on emergency applications.” Vladeck explained, “More than that, Gorsuch claimed that the Court’s interventions in many of the Trump cases would be ‘unnecessary’ but for bad behavior by lower courts.”

Vladeck blasted this outrageous accusation:

It would be one thing if Gorsuch had incontrovertible evidence of lower-court defiance. But….the opposite is true. Instead, the real culprit here is the Supreme Court’s own majority, which continues to hand down thinly (or entirely un-explained rulings in these cases and expect lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.

The Court may have the raw power to act that way. But to then criticize lower-court judges—who, unlike the justices, are moving heaven and earth to provide lengthy, written rationales of their decisions—is not just profoundly disrespectful; it is further enabling an increasingly loud (and increasingly dangerous) anti-judiciary narrative on the right….

The lower court judges who spoke to NBC News agreed with Vladeck’s view. Frankly, Gorsuch’s obnoxious bullying only underscores their complaints that the MAGA justices are out of control.

This intra-judicial fight is just the latest installment in the MAGA justices’ record of misbehavior and overreach. It is no surprise that the court’s approval has plummeted. Whether it is receipt of lavish gifts (along with inexcusable disclosure lapses), refusal to accept mandatory ethics rules, utter disregard of precedent to super-charge the extreme right-wing agenda, systematic destruction of voting rights, or nasty partisan attacks on critics, the Roberts Court no longer resembles a panel of dispassionate jurists.

But MAGA justices apparently wrongly assume they are beyond reproach. In fact, Congress controls their jurisdiction, composition, and even the length of their terms, many legal experts argue.

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The Constitution states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress could, for example, entirely do away with its appellate jurisdiction. An en banc panel of the D.C. Circuit Court could be designated as the highest court for appellate review. A lesser step would be to allow appellate review only of final opinions, thereby eliminating the emergency docket as a means of lifting temporary restraining orders or preliminary injunctions.

Other reform measures such as a mandatory ethics code and term limits already garner overwhelming bipartisan approval. And should the court continue its unprincipled, partisan crusade and/or strike down more mild restrictions, public support to expand the court to 13 members (matching the number of circuits) would likely soar.

Given the unconscionable conduct of the current Supreme Court, a course correction is long overdue. Having lost legitimacy in the eyes of the American people and even in the eyes on lower court judges, they risk a serious backlash if the MAGA majority continues to abuse the emergency docket, slander lower courts, violate ethical norms, egregiously ignore precedent, and facilitate Trump’s quest for dictatorial control. A toothless “Supreme” Court with very limited jurisdiction and term limits would be quite a legacy for Roberts, the self-described “institutionalist.”

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