If
democracy
survives,
it’ll
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
—
and
still
somehow
remain
the
nation’s
last
functioning
firewall
against
authoritarianism.
That’s
the
best
way
to
sum
up
the
judges’
panel
from
the
Society
for
the
Rule
of
Law
summit
this
week.
Three
retired
judges
—
Judge
Paul
Grimm
of
the
District
of
Maryland,
Judge
Nancy
Gertner
of
the
District
of
Massachusetts,
and
Judge
Michael
Luttig
of
the
Fourth
Circuit
—
spoke
for
an
hour
about
the
dire
challenges
facing
the
judiciary.
The
portrait
is
bleak,
but
the
district
bench
continues
to
perform
heroic
work.
Moderator
Ben
Wittes
of
Lawfare
—
who
quipped
after
the
fact
that
the
whole
panel
was
off
the
record
—
set
the
tone
off
the
top,
asking
the
judges
to
weigh
in
on
his
sense
that
“the
district
bench
has
been
somewhere
between
excellent
and
spectacular.”
Judge
Grimm
described
their
work
as
the
“line
in
the
sand,”
Judge
Gertner
applauded
the
district
courts
for
“meet[ing]
the
moment
in
a
way
that
I
think
is
extraordinary.”
Judge
Luttig,
as
the
appellate
representative,
said
of
the
judges
wading
through
the
mountains
of
litigation
spawned
by
the
administration’s
chaotic
policies:
They
have
brought
further
honor
to
the
lower
federal
bench,
at
a
time
—
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
—
the
lower
federal
courts
—
have
honored
their
oath
and
they
will
continue
to
honor
their
oath.
I
suppose
one
benefit
of
the
Trump
administration’s
selective
harassment
of
people
in
historically
Democratic
jurisdictions
is
that
we
don’t
need
to
know
how
judges
in
Amarillo
or
Fort
Pierce
might
rule.
So
let’s
just
celebrate
the
district
courts
generally
and
not
dig
deeper.
And
they’re
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,
placed
the
blame
squarely
on
the
absence
of
good
faith
within
this
Justice
Department:
The
arguments
that
are
being
made…
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.
It’s
also
a
government
that
is
bald-faced
lying
to
federal
judges.
Judge
Gertner
described
the
challenges
when
judges
can’t
count
on
the
parties
to
tell
the
truth:
It’s
not
just
an
issue
of
the
arguments
they’re
making.
They’re
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’s
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
—
at
a
time
when
you’re
always
shocked
—
is
that
that’s
not
true.
That’s
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.
She
cited
a
Just
Security
study
detailing
43
cases
where
the
DOJ
made
serious
misrepresentations
to
the
courts.
Unfortunately,
the
district
bench
isn’t
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
against
artificial
government
deadlines,
racing
against
a
government
that’s
proven
willing
to
disregard
its
own
pledges
to
ram
through
its
wishes.
Meanwhile
appellate
judges
auditioning
for
Trump’s
Supreme
Court
papabile
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.
And
the
Supreme
Court
continues
to
drop
unsigned
two-paragraph
orders
before
heading
to
bed.
For
all
the
issues
with
the
Supreme
Court’s
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:
The
Supreme
Court
has
no
power
at
all
in
our
system
and
government,
except
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
—
at
all
—
let
alone,
reasoned
opinions
of
law.
It
is
acting
illegitimately,
period.
It
doesn’t
have
the
power
of
the
purse.
It
doesn’t
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.
And
yet,
the
conservative
majority
of
the
Supreme
Court
grows
increasingly
agitated
that
the
district
courts
aren’t
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’s
admonition
that
these
shadow
docket
opinions
are
nothing
more
than
Calvinball
and
that
there’s
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
“all
the
formality
of
notes
on
a
napkin.”
Why
is
the
Court
so
hot
over
district
courts
following
these
shadow
docket
opinions
as
if
they’re
precedent?
Judge
Luttig
noted
that
“there’s
no
logic
to
it
at
all,
but
there’s
thinking
to
it,
and
that’s
what
we
need
to
be
concerned
about.”
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’ve
previously
suggested
that
the
Supreme
Court
majority
also
hopes
to
hedge
its
bets
this
way
—
commanding
lower
courts
to
keep
issuing
Trump-friendly
rulings
without
actually
disturbing
precedent
so
they
can
return
under
the
next
Democratic
administration
and
declare
“just
kidding,
good
thing
we
never
actually
overruled
these
cases!”
No
one
on
the
panel
went
quite
that
far,
but
they
did
point
out
that
the
Supreme
Court’s
actions
sought
to
push
off
having
to
grapple
with
the
substance
for
years,
which
certainly
backs
that
up.
This
reckless
shadow
docket
behavior
inspired
12
judges
to
call
out
the
Supreme
Court
for
its
role
in
driving
violent
threats
against
the
judiciary.
“The
level
of
personal
attacks
and
threats
against
them
has
been
beyond
anything
that
you
could
imagine,”
Judge
Grimm
explained.
“I
think
if
the
American
public
actually
heard
some
of
those
threats,
that
they
would
be
appalled.
And
you
would
not
know
—
for
a
nanosecond
—
from
their
actual
rulings,
that
the
judge
was
appointed
by
either
a
Democratic
or
a
Republican
president.”
He
proceeded
to
quote
one
specific
threat
a
federal
judge
received
and
it
succeeded
in
appalling
the
audience.
“We
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,”
he
recounted
the
threat.
“We’re
at
the
point
where
the
Marshals
Service
has
said,
that
there
are
over,
I
think,
this
year
it’s
almost
up
to
500
credible
threats
against
U.S.
district
judges.”
Of
course,
Chief
Justice
Roberts
offered
his
thoughts
these
threats
in
his
annual
report
this
year,
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
—
as
Judge
Cullen
noted
in
a
recent
opinion
—
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’s
lead
in
placating
the
administration.
It’s
difficult
to
describe
Judge
Luttig
as
anything
but
furious
at
this
point.
The
ideals
that
he’s
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
—
the
lying,
the
contempt,
the
abdication
of
the
Supreme
Court
—
by
describing
the
impossible
situation
the
courts
are
in
when
there’s
no
mechanism
to
hold
the
lawless
accountable.
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…
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, to
a
virtual
certainty,
would
reverse
them
in
a
second
if
they
held
Donald
Trump
in
contempt.
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.
Everything
built
on
top
of
it
is
either
crumbling
or
actively
trying
to
knock
it
all
down.
Earlier:
Rule
Of
Law
Conservatives
Awkwardly
Embrace
#Resistance
Trump
Can
Now
Send
SEAL
Team
6
To
Assassinate
Dancing
Inflatable
Frogs
Supreme
Court’s
Shadow
Docket
Scam
Collides
With
Reality
In
A
Bold
Move,
Federal
Judges
Are
Calling
Out
The
Supreme
Court’s
Bullsh*t
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
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tips,
questions,
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