Bonus 238: The Court Against the Courts
As part of the Harvard Law Review's annual Supreme Court issue for OT2025, my Foreword argues that the Supreme Court is quietly dismantling the district courts' authority—and arrogating it to itself.
The first issue of each annual volume of the Harvard Law Review, published each November, provides a look back at the Supreme Court’s previous term—including a Foreword, a series of other long-form scholarly pieces (I wrote one for OT2018), a number of shorter student notes about “leading” cases, and a trove of (useful) statistics—and recently, a crossword! I’ve written before a bit about the history and etymology of the Foreword, in particular—which has come to be one of the more visible pieces of legal scholarship (if that’s not an oxymoron) published each year.
For better or worse, I have the honor and privilege of having been invited to write the Foreword for this year’s Supreme Court issue, covering the October 2025 Term (to be published in November 2026). And now that I have a completed draft, I thought I’d use today’s bonus post to introduce (and share) the draft, and, below the fold, to reflect a bit on both (1) the evolution of the Foreword in general; and (2) the specific reasons I settled on the focus of this year’s piece.
To spoil the punchline, here’s the abstract:
The Supreme Court sits atop a judicial system on which it is deeply dependent. It lacks the capacity to superintend more than a fraction of the cases filed each year, and it relies on the “inferior” courts beneath it to develop records, sharpen issues, and enforce compliance with coercive orders. The Chief Justice (of the United States, not just the Supreme Court) is steward of that whole system—not merely of the Court at its apex.
Since President Trump returned to office in January 2025, that system, and federal district courts in particular, has been subjected to a sustained, multi-front assault without precedent in American history: a historic flood of litigation, rhetorical and impeachment-based attacks from the political branches, escalating threats against judges and their families, and mounting executive defiance of court orders.
One might have expected the Supreme Court to be the lower courts’ shield. In this Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, I argue that it has instead been a significant part of the problem. Through an accelerating series of emergency-docket interventions—and through its merits rulings, its rhetoric, and its silences—the Court has stayed, narrowed, or vacated district court orders, often without full briefing, argument, or reasoned explanation, while treating trial judges’ considered factfinding and legal conclusions as provisional placeholders to be revisited at the justices’ discretion. Using seven sets of cases from the past eighteen months, I show that the Court has done significant damage to the formal, practical, and moral authority of federal district courts to hold the federal government to account—all while arrogating much of that same authority to itself, with respect to factfinding, law-finding, the timing and scope of appellate review, and the balancing of the equities.
The cumulative effect has been to recast the district judge from an Article III adjudicator whose orders bind the United States into something closer to an adjunct of the justices. That transformation, I contend, is best understood as one more expression of the judicial aggrandizement—and, ultimately, the “autocratic judging”—that has come to define the Roberts Court, and it poses a serious threat to the rule of law. Re-empowering the district courts, accordingly, should be central to any serious program of court reform. The story of the Supreme Court since early 2025 is, in the main, a story about the Court against the courts.
And for those who would like to read more (warning: it’s … long), the full draft can be downloaded from SSRN at this link. Needless to say, I’d welcome any and all feedback!
For those who are not paid subscribers, we’ll be back Monday with our continuing coverage of the Supreme Court. For those who’d like to know a bit more about the Foreword in general and my contribution, in particular, please read on.
