A year of peril lies ahead for the federal courts.
T hese are wild times for the judiciary. Michael Scherer in The Atlantic raves about “The Anti-Trump Strategy That’s Actually Working: Lawsuits, lawsuits, and more lawsuits.” Lawrence Hurley at NBC News gets judges to knock the Supreme Court anonymously: “In rare interviews, federal judges criticize Supreme Court’s handling of Trump cases: Ten judges tell NBC News the Supreme Court needs to explain its rulings better, with some urging Chief Justice John Roberts to do more to defend the judiciary against external criticism.” Justice Ketanji Brown Jackson herself blasts the Court’s majority and its jurisprudence as “Calvinball” in which “there are no fixed rules. We seem to have two: that one, and this Administration always wins.”
These are all signs that the Court has hard times ahead. Its institutional capital could be seriously at risk.
Institutions do not have an unlimited well of authority. Every institution, whether in or out of government, has both formal levers of power and informal authority. Without the informal authority, the formal power often turns out to be far weaker than expected. Even formal powers can be changed or effectively neutralized. We live in an era of perilous instability that has sparked crises of internal and external confidence and resources for many of our institutions, including Congress, the administrative agencies, the military brass, the police and prosecutors, public health authorities, the press, the universities, publicly supported arts, the banks, the churches, retailers, restaurants, and sports leagues.
The federal courts have thus far come through this era in surprisingly strong health. But that may not last forever. The past year and a half has presented unique challenges, many of which originate with the singular personality of Donald Trump and the enmity he generates. How the Supreme Court navigates those challenges over the next year and a half will do much to determine the long-term viability of our system of independent federal courts and the rule of written law in America.
From Outside the House
For the past decade and a half, the threats to the judiciary have been familiar, largely from the left, and mostly external, such that it was natural and comfortable for the Republican Party and the conservative movement to rally around the Court, and for the justices to respond to them by staying above the fray and sticking to their originalist and textualist guns. Those threats, which I’ve covered extensively and won’t fully rehash here, included proposals to pack the Court and strip its jurisdiction, protests at the justices’ homes while the authorities refused to prosecute illegal protests and dragged their feet on providing protection, a baseless accusation of sexual assault, the president chewing out the justices to their faces, the Democratic Senate leader taking to the Supreme Court steps to promise that two named justices would reap “the whirlwind,” an unprecedented leak of a near-final draft opinion, a press campaign of demonization of the justices on trumped-up ethical grounds (including routine attacks on their wives), and an armed assassin showing up at a justice’s house.
This has been hard for the justices to take, but at least they had allies in their corner. Conservatives and Republicans of every stripe have consistently rallied behind them. So have ordinary voters: Democrats paid a price in Senate elections for their anti-Court proposals. And the Court could afford to work patiently at its own pace to issue reasoned and scholarly opinions that advanced and entrenched the majority’s judicial philosophy amidst the hysteria. The Court’s popularity took a brief hit with the Dobbs decision, but that was a soundly reasoned ruling, and the public has gradually moved on to accept it as fact.
It’s Different This Time
The new problem began to emerge in the 2024 cases involving lawfare to get Trump off the ballot, in courtrooms instead of on the campaign trail, and ultimately in jail. The Court was able to accomplish the directionally correct goal of preventing the legal system from being abused by bogus theories to deprive the voters of a choice — and the voters responded by electing Trump in spite of, and perhaps partly because of, the criminal and civil charges against him. But it was not the finest of hours for the conservative majority. The Trump v. Anderson case, which concerned Trump’s eligibility under the 14th Amendment, was unanimously decided but hastily written and poorly reasoned. The presidential immunity decision was right in broad outline, but extended far too broadly. The January 6 Fischer case, in my view, was wrongly decided.
The real craziness started when Trump was inaugurated, and the district courts immediately began issuing a thicket of injunctions. This produced a lot of rage on the MAGA right, which excoriated the courts in general and the Supreme Court in particular for not stopping it. Justice Amy Coney Barrett, having also parted company with the other conservatives in Fischer and a few notable cases in the 2024–25 term, came under particular fire, often unfairly. At the same time, the Court took a turn as spring and summer wore on to issuing emergency orders undoing many of the injunctions against internal executive branch matters (firings, defundings) while continuing to vex the Trump administration’s most maximal efforts to deport people without judicial process. This drew the ire of the left side of the spectrum, which is receptive to Jackson’s charges of pro-Trump partisanship, while the MAGA forces focused on immigration continue to accuse the Court of destroying the country by asymmetrically requiring process to kick people out when Joe Biden followed no process in letting them in. Vice President JD Vance has made this argument explicitly.
The Court will never make everyone happy and shouldn’t try. Many on the left reject the premises of the Court’s originalist and textualist leanings and so will never accept the outcomes they produce. But in the long run, the Court’s credibility, and its capacity to sustain its formal role without facing either Court-packing, jurisdiction-stripping, or open executive and/or lower-court defiance of its rulings, depends upon a baseline perception that the Court has the courage to stand up both to Trump and to his adversaries. That includes not only the hard matter of getting the law right, but also the judgment of when to intervene — and, critically, the task of persuasively explaining its rulings. The current Court does that well in most cases on its regular docket, but emergency rulings have undermined that.
Against Him, the Deluge
The Court is in the unenviable position of being largely reactive. Threats to its credibility can be driven by the actions of legal activists, lower courts, and the executive branch. While the Court can take some initiative, it cannot control those other actors — increasingly, even the district judges who are supposed to obey the Court’s rulings. Indeed, the Court now faces threats from within, as members of the liberal minority (notably Jackson) are increasingly willing to publicly attack the institution’s credibility.
Scherer paints the campaign by Norm Eisen and other “captains of the legal resistance” as heroic, but he ends up with a portrait of a movement that is more concerned with using the courts to stop Trump and damage him politically than with upholding our constitutional order (tellingly, the Constitution, its separation of powers, and its rules never appear anywhere in the article). He talks about a “barrage of coordinated efforts,” a “plan to file a Hail Mary lawsuit” to get Epstein files to embarrass Trump, a movement that “has as much in common with political organizing and investigative reporting as it does with legal theory,” and efforts to recruit plaintiffs with messages such as, “You are in 1938 Berlin. Which kind of person are you? . . . This is the closest you are going to get to that moment.”
Rather than with legal merit, the effort, starting with a suit filed “within hours of Trump taking the oath of office,” has sought to succeed with sheer brute force volume of suits: “a steady assembly line of setbacks and judicial reprimands.” “Of the 384 cases filed through August 28 against the Trump administration, 130 have led to orders blocking at least part of the president’s efforts, and 148 cases await a ruling,” notwithstanding how many of those have been overturned on appeal. The result has often paralyzed the administration in running the executive branch and enforcing the law:
Since Inauguration Day, executive orders have been defanged or blocked, agency closures delayed, government-employee firings reversed. Deportation flights have been delayed, law firms have freed themselves from Trump’s retaliation, and foreign students have won the ability to continue studying at U.S. universities. Courts have forced the president to restore cut services and spending to AmeriCorps, the U.S. African Development Foundation, the CDC, and other agencies. They have upended an effort by the Office of Refugee Resettlement to make it more difficult to release unaccompanied minors from government custody and forced Trump to pay for foreign-aid bills he had hoped to stiff-arm. A federal appeals court ruled Friday that many of Trump’s tariffs were illegal, setting up a likely hearing by the Supreme Court.
Some of those rulings, such as the tariff decision, are correct. But many are not, and the volume of them makes it hard to defend the proposition that they can be managed through the ordinary judicial process. Yet the ordinary judicial process is what the Court is supposed to symbolize, supervise, and guide.
Hurley’s dozen district judges speaking anonymously aren’t helping, even if they, too, have the occasional good point (that the Court is often not adequately explaining its reasoning) and make the occasional concession (one Obama-appointed judge acknowledges that “the whole ‘Trump derangement syndrome’ is a real issue. As a result, judges are mad at what Trump is doing or the manner he is going about things; they are sometimes forgetting to stay in their lane.”) Moreover, Hurley complains that district judges face threats of violence, but never mentions that such threats have been larger and longer standing for the conservative justices, including the assassin who showed up at Justice Brett Kavanaugh’s house.
The real menace to the courts is that the MAGA right will lose so much faith in the legal system that it turns towards stripping their power or their independence. This is such a large threat not because the right is more dangerous to the courts than the left, but because the left has already embraced that mindset, so the Article III branch cannot afford to lose its remaining friends. Mike Pence, Bill Barr, Jeff Sessions, and Mitch McConnell would stand up for independent courts; their successors are another matter. But buying off MAGA with rulings that aren’t rigorously grounded in the Constitution and laws, and without demonstrating the willingness (in cases such as the tariffs case) to continue ruling against Trump, will play in a different way into the left’s hands by undermining the Court’s credibility with what remains of the center.
It will be a hard needle to thread, but the justices will need to spend the next year showing the world that the Court will defend its own philosophy against all comers at once, and not let overzealous legal activists and overwrought district judges drive the entire judiciary into a ditch.