Bonus 242: How Quickly They Forget...
Every procedural complaint about today's judges describes something that was *worse* during the Biden administration—when the critics said nothing and when the government obeyed.
On Friday, Judge Allison Burroughs entered an administrative stay preventing the termination of Temporary Protected Status (TPS) for Somalia, after the plaintiffs amended their complaint to press a Fifth Amendment claim that hadn’t been resolved by the Supreme Court’s June decision in Mullin v. Doe. Within hours, DHS’s General Counsel called it “mutiny against the Supreme Court.” Iowa’s Solicitor General called the administrative stay “novel” and the surviving claim “frivolous” (and insinuated lots of other nefarious stuff on Twitter). By the weekend, Congressman Andy Ogles had introduced articles of impeachment against Burroughs—who became the 12th different district judge to have formal articles introduced against them since January 2025. (In the preceding 15 years, by contrast, articles had been introduced against exactly one district judge.)
Then, on Monday, Florida Attorney General James Uthmeier asked Congress to open an impeachment inquiry into Eleventh Circuit Judge Nancy Abudu, not for anything she has done as a judge, but for what he suspects she knew during her prior employment at the Southern Poverty Law Center. His theory appears to be that a sitting judge “should not be able to escape impeachment for wrongful conduct occurring prior to her appointment,” even though the evidence of both SPLC’s “wrongful conduct” and Abudu’s responsibility for it both … leave something to be desired.
The complaint about Burroughs is, at bottom, a complaint about procedure: whether a district judge may use an unlabeled interim device to hold a policy in place while she sorts out whether a claim can survive. That’s a fair question, and it’s one I’ve been writing about for years—because, contra what so many right-wing lawyers and commentators have been insisting, district judges did the exact same thing during the Biden administration. If anything, their behavior was, in various respects, even more troubling.
One can say the same thing about the rest of the bill of particulars currently being leveled against the lower courts: From litigants shopping for friendly judges to judges allowing suits against the federal government to go forward based on thin standing arguments to judges issuing creative forms of relief, most of the procedural critiques one hears from the right these days describe behaviors that we saw at least as much—if not more—of between 2021 and 2025. I was critical of much of that behavior then (unlike many of today’s critics) and I remain opposed to much of it today. But the one thing it isn’t is “novel.”
The Abudu letter is a different animal. It isn’t about a ruling; Uthmeier doesn’t cite one. He’s arguing that a sitting federal judge should be removed from office because of where she worked before she was confirmed. And by pretending that the real story is the not-so-novel behaviors we’re seeing in lower courts, right-wing commentators are obscuring what is new—the unprecedented volume of defiance of court orders; the sustained efforts to attack and delegitimize lower federal court judges; and the very real threats that those efforts have engendered. (If you haven’t already read Joanna Slater’s story about Chief Judge McConnell in yesterday’s Washington Post, you should.) In short, we’ve gone from criticizing rulings to seeking to impeach the judges who write them, filing misconduct complaints against them, and listening to the Deputy Attorney General announce that his Department is at “war” with the district courts.
The purpose of today’s post is to document both of these points—how the procedural critiques so often being leveled from the right these days all relate to behaviors that were just as prevalent, if not more problematic, during the Biden administration; and how what’s actually different about this moment is the scale (and source) of these sustained efforts to undermine so many different federal judges, if not the lower federal judiciary itself. I know you’re shocked to hear this, but the same folks who said nothing when district courts engaged in these procedural behaviors during the Biden administration (and who now claim they’re “novel”) have had remarkably little to say about what really is novel—the profoundly dangerous delegitimization campaign in which they are, however unwittingly, necessarily participating.
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