Every federal judge (and justice) should read the two letters from Chief Judge Patrick Schiltz in the church protest case—and what they tell us about the Department of Justice's litigation behavior.
Steve, thank you for laying out so clearly the facts as well as the judicial reasoning that helps protect what seems right now to be our strongest institution. Judge Schlitz is doing the job the Founders planned for the courts to do.
Can you say more about the Eighth Circuit? Isn't it that Circuit's Court of Appeals that is allowing ICE continue to use tear gas, (and worse), against protesters?
CA8 is slightly less nakedly fascistic than CA5, but even more reliably conservative in its panel draws, as it is almost entirely comprised of Republican appointees.
I also think that, broadly, the fascist judiciary is learning lessons from each other in how to obstruct justice-- enter fake "administrative" stays with no duration, write as little as possible when in the majority so that there's nothing to rebut or attack, slow-walk dissents when in the minority, latch on to (or, if necessary, invent) nonmerits objections to whatever the requested relief is (usually involving shunting the claim to an administrative tribunal that a. doesn't have independent members and b. couldn't grant effective relief even if it did), and openly invite SCOTUS to reweigh the evidence and ignore the facts. The Boasberg contempt situation, where we're now ten months from flagrant contempt of court and the district judge hasn't been able to hold a basic factfinding hearing yet, exemplifies this behavior.
The Trump DOJ sees the federal and State courts as a road block or stepping stone to get to the Supreme Court , and usually the shadow. There is no doubt Justice's serving the Supreme Court are bought and paid for to the point where the Constitution is meaningless. The truth will float like always, but this time Justice's of the supreme Court will be exposed, and change will come to the Supreme Court
Agreed on the DoJ chasing headlines. Also the reason the Canada tariffs came back (briefly) in the news after TACO-ing to Europe.
The question will be the judges under pressure to both-sides or outright side with the DoJ. Opaque systems to slow down unfavorable cases that the court cant avoid on the merits, while accelerating the favored, but weaker cases? Sounds like a shady way to manage a docket.
In your opinion, why was the DOJ's emergency petition sealed in the first place? Reading it now, it's the kind of filing that the current government likes to trumpet. Are such petitions initially sealed as a matter of course? Was it sealed in the hopes that the district court would be unable to respond?
It's a great question for which I don't have a good answer. There are *exhibits* to the petition that remain sealed, but that could've been done without sealing the petition itself. I can't think of a good reason for not wanting the brief itself to be public; indeed, DOJ moved to seal the *entire case.*
Thank you again for this thorough explanation. I had read the letters yesterday; this clarifies all aspects. I think about this extreme attempt to get headlines or to punish someone along the lines of the completely outrageous, over-the-top lies of Kristi Noem in her press conference yesterday.
8th Cir has 4 Trump appointees including Grasz. Benton a Bush appointee will take senior status upon his seat being filled by Trump. Trump a couple of days ago nominated two children of active 8th Cir judges to serve on the fed bench in the same circuit, which is unusual. One is Benton's daughter. So much for the swamp and guardrails, despite Steve's legal analysis. Good lawyers know the law, great lawyers know the judge.
I came across another post about this that I thought was also thoughtfully done: https://www.powerlineblog.com/archives/2026/01/disorder-in-the-court.php. What I found discouraging were the numerous comments added from readers that, much like comes from the Trump administration, spouted untethered attacks on the federal judges and judiciary, claiming unelected and 'activist' judges as a (preposterous) basis for the government to behave in this way.
The Executive Branch including the Department of Justice has the trappings of legitimacy, but it isn’t. It’s time to recognize and do something about that.
Allow me to add that in not notifying him about, or serving him with, the mandamus petition, the government actually denied the chief district judge (of all people) due process. And so it goes.
Thanks for another great post and links. Love, love, love the quotation marks on "Civil Rights" Division. I can't imagine how hard it must be for you right now to exercise restraint in writing about what you see as the problems with our Injustice Department. Agent Ross shoots Good through the head at point blank range and the "Civil Rights" Division says they see no basis for an investigation, but because they can't arrest a journalist and his videographer immediately, it is a nation security emergency. Orwellian to a tee.
Steve, thank you for laying out so clearly the facts as well as the judicial reasoning that helps protect what seems right now to be our strongest institution. Judge Schlitz is doing the job the Founders planned for the courts to do.
Thank you for this. Extremely helpful.
Thanks Sharon. I hope you guys are (relatively) safe in MN.
Can you say more about the Eighth Circuit? Isn't it that Circuit's Court of Appeals that is allowing ICE continue to use tear gas, (and worse), against protesters?
CA8 is slightly less nakedly fascistic than CA5, but even more reliably conservative in its panel draws, as it is almost entirely comprised of Republican appointees.
I also think that, broadly, the fascist judiciary is learning lessons from each other in how to obstruct justice-- enter fake "administrative" stays with no duration, write as little as possible when in the majority so that there's nothing to rebut or attack, slow-walk dissents when in the minority, latch on to (or, if necessary, invent) nonmerits objections to whatever the requested relief is (usually involving shunting the claim to an administrative tribunal that a. doesn't have independent members and b. couldn't grant effective relief even if it did), and openly invite SCOTUS to reweigh the evidence and ignore the facts. The Boasberg contempt situation, where we're now ten months from flagrant contempt of court and the district judge hasn't been able to hold a basic factfinding hearing yet, exemplifies this behavior.
Thank you judge Schlitz!
The Trump DOJ sees the federal and State courts as a road block or stepping stone to get to the Supreme Court , and usually the shadow. There is no doubt Justice's serving the Supreme Court are bought and paid for to the point where the Constitution is meaningless. The truth will float like always, but this time Justice's of the supreme Court will be exposed, and change will come to the Supreme Court
Agreed on the DoJ chasing headlines. Also the reason the Canada tariffs came back (briefly) in the news after TACO-ing to Europe.
The question will be the judges under pressure to both-sides or outright side with the DoJ. Opaque systems to slow down unfavorable cases that the court cant avoid on the merits, while accelerating the favored, but weaker cases? Sounds like a shady way to manage a docket.
In your opinion, why was the DOJ's emergency petition sealed in the first place? Reading it now, it's the kind of filing that the current government likes to trumpet. Are such petitions initially sealed as a matter of course? Was it sealed in the hopes that the district court would be unable to respond?
It's a great question for which I don't have a good answer. There are *exhibits* to the petition that remain sealed, but that could've been done without sealing the petition itself. I can't think of a good reason for not wanting the brief itself to be public; indeed, DOJ moved to seal the *entire case.*
Thank you again for this thorough explanation. I had read the letters yesterday; this clarifies all aspects. I think about this extreme attempt to get headlines or to punish someone along the lines of the completely outrageous, over-the-top lies of Kristi Noem in her press conference yesterday.
8th Cir has 4 Trump appointees including Grasz. Benton a Bush appointee will take senior status upon his seat being filled by Trump. Trump a couple of days ago nominated two children of active 8th Cir judges to serve on the fed bench in the same circuit, which is unusual. One is Benton's daughter. So much for the swamp and guardrails, despite Steve's legal analysis. Good lawyers know the law, great lawyers know the judge.
I came across another post about this that I thought was also thoughtfully done: https://www.powerlineblog.com/archives/2026/01/disorder-in-the-court.php. What I found discouraging were the numerous comments added from readers that, much like comes from the Trump administration, spouted untethered attacks on the federal judges and judiciary, claiming unelected and 'activist' judges as a (preposterous) basis for the government to behave in this way.
Thank you for clarifying this situation.
I suppose we should be grateful that DOJ made court filings instead of having ICE’s thugs just shoot the protesters.
The Executive Branch including the Department of Justice has the trappings of legitimacy, but it isn’t. It’s time to recognize and do something about that.
When Judge Grasz was nominated for the bench, the ABA rated him unqualified. Trump appointed him.
Senate (Republican?) must have confirmed.
Thank goodness for Judge Schiltz and for you Steve for as always your very clear and understandable assessment of the situation and the law.
Allow me to add that in not notifying him about, or serving him with, the mandamus petition, the government actually denied the chief district judge (of all people) due process. And so it goes.
Thanks for another great post and links. Love, love, love the quotation marks on "Civil Rights" Division. I can't imagine how hard it must be for you right now to exercise restraint in writing about what you see as the problems with our Injustice Department. Agent Ross shoots Good through the head at point blank range and the "Civil Rights" Division says they see no basis for an investigation, but because they can't arrest a journalist and his videographer immediately, it is a nation security emergency. Orwellian to a tee.