193. The "War" on Judges

Deputy Attorney General Blanche's attack on lower courts is an impressive combination of light on substance; shamelessly hypocritical; and profoundly dangerous. More people should be condemning it.

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The Supreme Court made a fair amount of news last week, but I wanted to use today’s post to reflect upon a story that got swallowed up in the SNAP-related developments—comments made by Deputy Attorney General Todd Blanche at the Federalist Society’s National Lawyers Convention on Friday, November 7. Specifically, Blanche attributed the Trump administration’s myriad losses in the lower federal courts to “rogue activist judges,” claiming that these “liberals” are “more political or certainly as political as the most liberal governor or D.A.” As Blanche continued (with my emphasis), “There’s a group of judges that are repeat players, and that’s obviously not by happenstance, that’s intentional, and it’s a war, man.” (There’s video here.) Exhorting young lawyers and law students in the audience to come work for the Department of Justice, Blanche continued, “We need you, because it is a war, and it’s something we will not win unless we keep on fighting. It’s hard to get the media, it’s hard to get the American people to focus on what a travesty it is when you have an individual judge be able to stop an entire operation or an entire administrative policy that’s constitutional and allowed just because he or she chooses to do so. So, it’s a war.”

These remarks, of course, did not come entirely off the cuff (you don’t refer to something as a “war” three times by accident), nor did they take place in isolation. The Attorney General herself has filed a (frivolous) misconduct complaint against Chief Judge Boasberg on the D.C. district court; Stephen Miller keeps decrying each adverse ruling against the Trump administration as just part of a broader “judicial insurrection”; and, although the hearing has been postponed for now, the Senate Judiciary Committee had been set to convene tomorrow to hold a hearing on incredibly dubious claims of misconduct by two district judges (never mind that the impeachment power belongs to the House of Representatives).

It’s certainly not a coincidence that we’re seeing all of these spurious attacks on lower courts at the exact same time as they have continued to be the single most effective—and important—check on the lawless behavior of the current administration. But that’s exactly why these attacks are so worrisome. It’s not just that they are remarkably light on substance (and indifferent to the data of where these adverse rulings are coming from, about which more below); it’s not just that they are shamelessly hypocritical given both the behavior of right-wing lawyers during the Biden administration and the attacks directed against those who were themselves critical of that behavior; it’s that, unlike anything that happened between 2021 and 2025, here it’s the number-one and number-two officials in the Department of Justice publicly leading the charge.

Not only is this rhetoric and conduct unbecoming of anyone in the employ of the Department of Justice, let alone its top two officials, but it will surely lead to an increase in both (1) the very real threats that these lower-court judges are already facing; and (2) eroding public faith, at least among those who take Bondi and Blanche seriously, in the lower federal courts. It would be one thing if there were any substance to their charges, but there isn’t. And yet, you’d be hard-pressed to find any conservative groups, right-of-center law professors, or other right-wing commentators publicly criticizing these remarks or the broader attacks on lower federal courts emanating from this administration. I don’t say this lightly, but that is to their profound (and growing) discredit.

Photo Credit: Josh Gerstein / Politico

More on all of that below. But first, the news.

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On the Docket

The Merits Docket

In addition to sitting for the second week of the November oral argument calendar, the Court in last Monday’s regular Order List added one more case to the docket for the upcoming term—agreeing to review a puzzling and controversial Fifth Circuit ruling that had held that federal law, by fixing Election Day as the Tuesday after the first Monday in November, bars states from accepting mail-in ballots that are received after Election Day even if they are postmarked on or before it. My own view is that this is—and should be—a “grant to reverse the Fifth Circuit” case, but either way, one can imagine justices from across the ideological spectrum wanting to at least settle that question well in advance of next year’s midterms.

The Emergency Docket

As has become the norm since this summer, most of the news the Court made last week came with respect to emergency applications.

First, with regard to SNAP, we had Tuesday’s extension (over Justice Jackson’s dissent) of Justice Jackson’s administrative stay—which I wrote about in some detail in Thursday’s bonus issue. As I predicted then, the Solicitor General withdrew the government’s application for emergency relief later on Thursday—after President Trump signed into law the bill reopening the government, which includes full funding for the Department of Agriculture for the rest of the fiscal year. Thus ends, at least for now, the SNAP-related litigation.

Second, the full Court also denied stays of execution to two death-row prisoners. The first came Wednesday when the justices, over no public dissents, cleared the way for Florida to kill Bryan Jennings. The second came Thursday in the case of Oklahoma death-row inmate Tremane Wood, this time over a public dissent from Justice Jackson (and with Justice Gorsuch not participating—presumably because he was involved in one of Wood’s appeals while serving on the Tenth Circuit).

Third, the Court on Thursday also denied emergency relief in the long-pending international child custody dispute, Castro v. Brito Guevara, over public dissents from Justices Sotomayor and Jackson. Given that Justice Alito had entered an administrative stay, and given how long the application was pending (it was filed on October 1; Alito entered his stay on October 2), I’m a bit surprised that no one wrote anything to explain their views. But … there’s a lot going on.

Finally, on Friday, Justice Sotomayor, acting by herself, vacated an administrative stay she had entered in a long-running suit by more than 9,000 Filipino victims of human rights abuses by former President Ferdinand Marcos. The applicants had obtained a $2 billion judgment against Marcos’s estate, which they are currently seeking to execute at least in part against $40 million of funds held in a New York bank account. Sotomayor’s order stressed that no stay pending appeal was needed because of the U.S. government’s “representation that it will not transfer the funds outside of the United States before the disposition of any petition for a writ of certiorari.” Sometimes, a party may seek emergency relief simply to extract such a concession from the government.

Ten years ago, this amount of emergency docket behavior would’ve been a story unto itself. In 2025, it’s just another week at the Court.

The Week Ahead

Turning to this week, we expect a regular Order List out of last Friday’s Conference at 9:30 ET. The Court is also scheduled to take the bench this Friday at 10:00 ET for a “non-argument session.” This has been on the calendar for some time, and is in no way a prediction that any decisions in argued cases are expected. Indeed, especially given all of the emergency docket activity, this strikes me as too early for any merits rulings. But a short, unanimous ruling from an October argument wouldn’t be beyond the realm of possibility; either way, we should get some indication of whether anything other than bar admissions is expected later in the week.

As for the emergency docket, we could see quite a lot of action this week—or not. The reply briefs in response to the Court’s supplemental briefing order in the Illinois National Guard case are due today, so we could see a ruling there later this week. Likewise, another pending emergency application from the Trump administration (the “is the Library of Congress an executive branch agency” case) has been ripe for a ruling since last Wednesday.

There’s also a new application from the Chamber of Commerce, represented by former Secretary of Labor Eugene Scalia, asking the Court to issue its own injunction pending appeal of new California state-law requirements that, as of January 1, 2026, most companies doing business in the state make a series of public disclosures relating to climate change. Although the Chamber challenged those laws on First Amendment grounds, the district court denied preliminary injunctive relief, and the Ninth Circuit, although it has expedited the Chamber’s appeal, has yet to act on its request for an injunction pending appeal. I assume Justice Kagan (as Circuit Justice for the Ninth Circuit) will, as soon as today, order California to respond—although I suspect we won’t hear from the full Court until after Thanksgiving.

Miscellaneous

Finally, the Court last week issued the oral argument calendar for the January 2026 argument session—which includes the two cases about discrimination against transgender athletes (on January 13); and the emergency application in the Lisa Cook case on January 21. The session includes only seven arguments across 10 slots—which means, among other things, that the later-in-term argument sessions are likely to be … crowded.

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The One First “Long Read”: “It’s a War, Man”

Even before Deputy Attorney General Todd Blanche’s comments at the Federalist Society Convention on November 7, I had already been planning to devote an issue to the growing assault on lower-court judges from both the Trump administration and congressional Republicans. But Blanche’s incendiary remarks added both a sense of urgency and a specific claim against which it seemed worth pushing back—for at least three independent reasons:

First, it is just not true, by any remotely objective measure, that the rulings adverse to the Trump administration are coming from a small subset of “liberal” district court judges in a handful of district courts. Second, data aside, neither Blanche nor any of the other critics have offered any substantiation of their charge—e.g., by identifying some recurring error that district courts are generally making in these cases even after the Supreme Court has specifically held otherwise. And third, to whatever extent these charges might be legitimate if they had any quantitative or qualitative support (and they don’t), they are especially dangerous to both the safety of these judges and public faith in the judiciary at a time in which the lower federal courts have been the institution that has arguably done the most to serve its intended constitutional function. Of course, that may be the point of these attacks—but that’s all the more reason for folks from across the political spectrum who claim to take our legal institutions seriously to denounce them.

I. The Data

Let’s start with the easy part. Although you might see slightly different numbers elsewhere (there are some small variances in methodology), my own regularly updated data, compiled by two of my research assistants—Alyssa Negvesky and Grace Kiple—and me, identifies 204 distinct cases as of last Friday in which federal district courts have ruled one way or the other on requests for preliminary coercive relief against the Trump administration.¹ In 154 of them, district judges granted either a temporary restraining order, a preliminary injunction, or both. And those 154 rulings came from 121 different district judges appointed by seven different presidents (including President Trump) in 29 different district courts across 10 circuits.² Indeed, 41 of those 154 cases with rulings adverse to the Trump administration were presided over by (30) Republican-appointed judges, fully half of whom (15) were appointed by President Trump. (This all assumes, of course, that the party of the President who appointed the judge is an accurate proxy for the judge’s ideological leanings. There are lots of reasons to dispute that framing, especially with respect to district court judges given the persistence of blue slips. But at least as generalizations, the data still has value, IMHO.)

Not surprisingly, the grant/deny rate varies a bit between Democratic appointees and Republican appointees; it’s 82% for the former (113/138) and 62% for the latter (41/66). But it’s still the case that more than a quarter of the cases in which there have been rulings adverse to the Trump administration have been presided over by 30 different Republican-appointed district judges; and that those judges are ruling against the Trump administration at a meaningfully higher clip than they are ruling for it.

Let me just say this one more time: It’s not just that rulings adverse to the Trump administration have come from 121 different district judges spread across the country in 29 district courts and 10 circuits; it’s that 41 of those cases have been presided over by 30 judges appointed by Presidents Reagan, George W. Bush, and Trump. All by itself, that total (41) would be an unprecedented number of rulings adverse to the federal government during the first ten months of any other presidency. If we just looked at those rulings, and no others, it would still be a remarkable story.

And although a visible subset of the total body of lower-court rulings have been “stayed” by appeals courts (including the Supreme Court), there are three points to make about the appeals: First, they’re still a significant minority of the total dataset. Counting the 22 distinct cases with stays from the Supreme Court and another ~20-25 from the courts of appeals, that’s still well more than 100 district court rulings that, at least as of today, remain in effect. Second, and speaking of the courts of appeals, it sure seems like any claims about “rogue activist judges” needs to account for the cases in which those courts are denying emergency relief—in which it’s not just district courts ruling against the Trump administration. One might also flag the handful of cases in which district courts had denied temporary relief but courts of appeals granted it (one especially visible example is the “is the Library of Congress an executive branch agency” case noted above). And third, although I’ve made this point before, it still seems kind of important to this narrative that, in the majority of these cases, the Trump administration either (1) has not appealed the adverse district court ruling at all; or (2) is appealing it without seeking emergency relief. In other words, it’s not just the data that overwhelmingly belies Blanche’s claims; it’s the Justice Department’s own behavior.

II. The Substance

Presumably, if one actually believed that these “rogue activist judges” were abusing their authority, one would have specific examples of analytical moves the judges keep making in these cases that are not just “wrong,” but that are indefensible. After all, in any large dataset of federal litigation, one can always find at least some rulings by district courts that are stayed pending (and reversed on) appeal. The question is not whether it’s possible to point to one or a handful of these 154 cases and find error; it’s whether there’s some broader pattern of behavior that is both (1) not surviving appeal; and (2) being followed by district courts even after the appeals courts or the Supreme Court have explained why that analysis is wrong.

Here, the biggest problem for those criticizing the lower courts is … the Supreme Court. Whatever else may be said about the Court’s refusal to provide full-throated explanations in most of its orders granting emergency relief to the Trump administration, one can hardly find in those cryptic missives any attempt to rein in particular analytical moves being made by lower courts. Indeed, the closest example—Justice Gorsuch’s separate opinion in the NIH case about which challenges to grant cancellations had to be brought in the Court of Federal Claims instead of ordinary district courts—is striking only in how unpersuasive it is; five justices disagreed with where Gorsuch thought the line was in NIH itself. Ditto district courts that at least initially enforced statutes protecting agency heads from being removed without cause; despite the tea leaves from the Supreme Court about overruling Humphrey’s Executor, Justice Kavanaugh himself has emphasized that district courts lack the power to overrule it first. It’s hardly “rogue activism” on the part of federal district judges to … enforce a squarely-on-point precedent from the Supreme Court when one of the key justices reiterates that they have no discretion to not do so.

Again, the story might be different if district courts in these cases were regularly finding, e.g., that plaintiffs have standing to challenge federal policies only to repeatedly be reversed by the Supreme Court (looking at you, district courts in the Fifth Circuit), or if they were regularly exercising jurisdiction in cases in which it is clearly foreclosed.³ But there is no evidence of any patterns along those lines—and, if there were, it would be easy enough for the Supreme Court to identify them.

The issue isn’t just that these patterns don’t actually exist; it’s that those criticizing the lower courts aren’t even bothering to identify what they think the patterns of allegedly bad behavior are. That’s critical because, as I’ve suggested in the past, I think there is a big difference between a specific, substantive criticism of either individual lower courts or patterns in lower-court decisionmaking and these kinds of handwaving complaints about “rogue activist judges” in contexts in which the only relevant criterion appears to be handing down rulings with which you disagree. The former is an essential part of a healthy discourse about the role of the judiciary in our constitutional system; the latter is not just lazy—it is affirmatively dangerous.

III. The Effects

In response to Blanche, the “Article III Coalition”—a group of 50 retired federal judges appointed by presidents of both parties—put out a remarkable statement, emphasizing that:

In the past year, federal judges have been the target of an unprecedented number of threats based on rulings that have been the subject of harsh criticism by senior public officials. The United States Marshals Service and other law enforcement agencies have determined that many of these threats have posed a credible danger to the judges, their loved ones, and their court staff.

It shouldn’t be controversial to suggest that these kinds of attacks from Blanche and other senior Republicans will only increase the incidence of those kinds of threats—especially as they are, and continue to be, amplified on social media. That is, and ought to be, reason enough to repudiate them.

Nor should it be controversial to explain why these attacks fundamentally misapprehend both the role of the lower federal courts and the proper means for objecting to their rulings. As former Fourth Circuit Judge Allyson Duncan (a George W. Bush appointee) put it in a press release accompanying the Article III Coalition’s statement, “Our founders did not design a system of government built on warfare between branches. They built a system of deliberate tension—where courts, Congress, and the executive branch check each other. Calling judges ‘rogue’ because they apply the law in a politically unfavorable way is a fundamental misunderstanding of the role of the judiciary in our constitutional structure.”

One might also point out the latent hypocrisy in these attacks. After all, it was at the exact same conference one year ago that Fifth Circuit Judge Edith Jones launched into an extended (and very personal) attack against me in response to my public criticisms of “judge shopping” in Texas district courts—in which plaintiffs, especially the State of Texas, kept steering nationwide lawsuits to single-judge divisions where they were guaranteed to be assigned to a specific federal judge. Among other things, Jones accused me of directly provoking death threats against Judge Matthew Kacsmaryk (based upon public comments criticizing litigants for repeatedly filing nationwide lawsuits in Amarillo).⁴ Even if one thinks the two types of criticisms are remotely identical (and there are a number of reasons why I think they very much aren’t), it’s striking that a single law professor’s comments warranted such a public response then, but these concerted attacks on a much larger number of district judges by senior executive branch officials have been met with … crickets … from the same cohort.

As I wrote then, the point is not that criticism of federal judges (or their critics) is illegitimate or per se harmful; it’s that there’s a critical distinction between criticisms that are founded in evidence and substantive arguments, on the one hand (which, in my view, are not only appropriate but vitally important), and those that are based upon handwaving and innuendo. If anyone would like to go through the rulings adverse to the Trump administration and explain how their analyses (as opposed to their results) reflect judges behaving badly, let’s have it. For now, it suffices to note that any such claim will depend upon much more than pointing to how many of these cases have been filed in Boston or San Francisco; or how often specific courts or judges have ruled one way versus the other. It depends upon identifying the legal points that these judges keep getting wrong—and explaining why no reasonable judge could make the same error.

I’m still not convinced that it would be appropriate for senior Justice Department officials to suggest that they are at “war” with the courts even in those circumstances—especially at the same time as the executive branch is engaged in what appears to be patently unlawful real warlike activity elsewhere. But until and unless the case is made that the courts are doing anything to warrant such a bellicose response, such overheated and incendiary rhetoric reflects little more than an effort to undermine the one institution that the current administration has not been able to steamroll, and for no other reason than because federal judges of every stripe keep enforcing statutory or constitutional constraints against the Trump administration.

In that regard, my exasperation stems not only from these attacks themselves, but from the continuing silence of so many groups, organizations, commentators, and academics to my right—who have, at plenty of other times, claimed to be invested in defending and/or protecting “judicial independence.” If you speak out in defense of judicial independence only to protect judges (or justices) who rule the way you want them to, then I respectfully submit that your definition of judicial independence is bollocks.

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SCOTUS Trivia:
Congress Nudges Justice Moody to Retire

115 years ago this Thursday, Justice William Henry Moody retired from the Court—less than four years after his appointment by President Theodore Roosevelt. Shortly after his appointment, Moody had been stricken by severe rheumatism, and sat on the bench for the last time on May 7, 1909. But because of Moody’s age and brief service, he was not yet eligible for the judicial pensions for which Congress had first provided in 1869 (which required the recipient to have reached both 70 years of age and 10 years of federal judicial service).

Borrowing from an 1882 precedent (when Congress had passed a similar statute to nudge Justice Ward Hunt to retire), President Taft lobbied Congress to enact a similar measure for Justice Moody’s benefit. That statute was adopted in May 1910—and offered to extend the 1869 benefits to Moody if, but only if, he retired within five months. Three days before that period expired, on November 20, 1910, Moody stepped down.

For more on the Hunt/Moody statutes, the broader historical politics of the justices’ pensions, and how Congress in 1937, for better or worse, mooted the need for comparable one-off statutes, see this older post.

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1. In other words, our dataset does not include cases in which the plaintiffs have sought only damages and/or declaratory relief. For prior posts about our efforts, see this one from March and this one from June.

2. And for all of the caterwauling about plaintiffs steering cases into obscure, remote geographic forums (like Boston or San Francisco), again, the data is to the contrary. Through last Friday, the district court responsible for the highest number of these rulings has been the D.C. district court (i.e., where the federal government is headquartered). Indeed, with 45 of the 154 total cases producing adverse rulings, D.D.C. is responsible for a greater chunk of these disputes than the next three jurisdictions (the Southern District of New York; the District of Massachusetts; and the District of Maryland) combined. And it is also responsible for almost twice as many of the 50 cases in which temporary relief has been denied (33) than the rest of the country combined (17).

3. This is a claim I’ve seen about at least some of the district court rulings in immigration cases. But the scope and applicability of the different jurisdiction-stripping provisions in immigration cases that Congress enacted in 1996 and 2005 has long been a matter of significant confusion and disagreement—including in the Supreme Court itself. (The six words in the previous clause each link to a different divided Supreme Court decision since 2020 about the scope of federal jurisdiction in different types of immigration cases.)

4. Not only has neither Judge Jones nor the Federalist Society apologized for what happened at last year’s Convention, but Judge Jones was invited back to moderate a panel at this year’s event. C’est la vie.