Dem
47
GOP
53
It would appear that our own (L) is not the only member of the legal profession to think that something is very wrong in the state of Denmark if, by "Denmark," we mean "the Supreme Court of the United States." Yesterday, NBC News published a very interesting item based on interviews with 12 federal judges, some of them Democrats, some of them Republicans (including at least one Trump appointee). The judges are... not happy.
All of the interviewees were granted anonymity, in part to protect from potential professional blowback, and in part for the judges' safety. Most of them have been doxxed, or swatted, or have otherwise had their safety threatened by people unhappy with their rulings. The specific thing that the judges and NBC talked about was the Supreme Court's use (or overuse) of the shadow docket, resulting in hasty, poorly explained rulings.
The first reason the judges do not like this is pretty obvious: It makes it difficult-to-impossible for them to do their jobs properly. If they have to deal with a case about citizenship, or deportations, or government spending, or who can/cannot be fired, or whatever, and all they've got is a brief, poorly explained Supreme Court decision, then the lower-court judges are left up the river without a paddle. Keeping in mind that every case is different, it's not so easy to use a decision in [CASE X] to decide similar-but-not-identical [CASE Y] if SCOTUS does not fully explain its underlying reasoning. "Too often today, sweeping rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide," one of the judges told NBC.
This leads to a second, related complaint, namely that the Supremes are undermining the authority and the dignity of their lower-court colleagues. After all, if a lower-court judge's ruling is basically just a guess, and if it's subject to being tossed out with a snap of Clarence Thomas' fingers, then that lower-court judge isn't too important anymore, are they? Several of NBC's interviewees said they felt like they were being "cut off at the knees" and "thrown under the bus" and that the justices "don't have our backs."
And finally, the lower-court judges worry that in addition to undermining the integrity of the inferior courts, SCOTUS is also undermining the entire judicial branch by making themselves look like water-carriers for the Trump administration. One of the judges said that SCOTUS appeared to be doing the bidding of Stephen Miller, in particular. And the judges are all aware that in 4 years, the Biden administration asked for 19 emergency interventions from the Supreme Court, and was successful on 10 of those occasions (batting average: .526). Meanwhile, considerably less than one year in, the Trump administration has had 19 asks resolved (one more is pending), and is 17-for-19 (.895).
Some of the judges were at least somewhat sympathetic to the tough position that Chief Justice John Roberts & Co. are in, and a couple also said that the courts are sometimes too reflexively anti-Trump. But even those interviewees who qualified their remarks joined with their colleagues in worrying that permanent damage is being done to the third branch of government, and that their life's work is at risk of going up in smoke. Undoubtedly, they hope that the interview gets back to Roberts and his band of merry justices, and that maybe they start to think about how they could be a little more institutionalist and a little less MAGA. (Z)