Trump and the Lower Courts

Some thoughts about what he's doing and what he might do

Via Randy Barnett, an excellent thread by Prof. Margo Cleveland, reproduced below.

I think she’s absolutely right. While simply ignoring court orders he believes improper is a response open to the Executive — and a legitimate one in extreme cases — it’s a last resort, and without a huge record it’s likely to play badly with important constituencies.

It’s true, of course, that in the landmark case of Marbury v. Madison, Chief Justice Marshall was moved to extreme cleverness by President Jefferson’s explicit and public threat to disobey a court order to turn over Marbury’s commission, but the courts were much weaker politically then than they are now. Though if things continue in this fashion much longer, that may no longer be true. Which is another reason for Trump to play it mildly so far.

Right now lots of people are calling for the impeachment of lower-court judges who flout the law, of which there seem to be many. (And no, the law is not to be found in citations to Taylor Swift or Hamilton.) But I think impeachment is a mistake.

Impeachment is hard, there’s no way the Republicans will get 2/3 of the Senate to vote for removal, and history suggests — from Bill Clinton through two different attempts on Donald Trump — that failed impeachment efforts leave their targets stronger, not weaker. (There was once even a pretty widespread movement to impeach Chief Justice Earl Warren over the liberal Warren Court opinions; one of its leaders, Rep. Gerald R. Ford, later became President, but Warren was unscathed, to put it mildly.)

Impeachment is a symbolic and probably self-destructive gesture. Those are for Democrats, not for Republicans who want to Make America Great Again.

But here are some things that could be done, lower profile but more effective.

First, expand the courts. No, no, not “court packing,” nothing like that. The National Judicial Council just recommended adding 66 District Judges and two Court of Appeals judges to remedy the “crisis of undermanned federal courts.” Republicans should do at least that, though I would add at least two new Court of Appeals judges to each circuit. And I might increase the number of district judges appointed to the District for the District of Columbia, and perhaps the Southern District of New York, beyond the Council’s recommendations on the ground that those districts seem to be getting busier.

This wouldn’t be court-packing, since it’s simply following the recommendations of a non-partisan commission. (And in truth, it’s been widely agreed for many years that the federal courts are understaffed).

Now for the Supreme Court. Again, no partisan court-packing. Instead, in a spirit of bipartisanship, the GOP should enact the Democrats’ bill from 2021, which would have expanded the Supreme Court from 9 to 13. Although perhaps, in a spirit of generosity, they might increase the number to 15.

Okay, this is good clean fun, and letting it be known that these changes are on the table would probably be an inducement to better behavior — and in particular an inducement to the Supreme Court to begin supervising lower courts more vigorously. And you could do this with simple majorities of the House and Senate.

With simple majorities you could, as I’ve previously suggested, bring back the requirement for three-judge district courts when the legality of federal statutes is challenged, and expand that requirement to include challenges to executive orders.

Another thing you could do with simple majorities, as Ron DeSantis has noted, is to strip federal courts of jurisdiction to issue Temporary Restraining Orders and Preliminary Injunctions in the class of cases that we’ve been seeing. Or, indeed, to strip them of jurisdiction to hear any complaints regarding the internal administration of the Executive. Or stripping courts of jurisdiction to issue any order in such cases until an appeals bond has actually been posted by the moving party.

Congress could also provide that lawsuits challenging changes to federal programs or agencies be assigned to randomly-selected district courts from around the nation, rather than the District for the District of Columbia. (It could possibly even go further and simply abolish the District for the District of Columbia, and do this with all cases. In 2025, there’s no real reason for all such cases to be heard in DC; it’s not the horse-and-buggy era anymore. Going further still, they could simply abolish the District of Columbia itself, which is permitted but not required to exist by the Constitution.)

Congress could also require that all proceedings in federal courts be televised. Federal Judges have resisted that, but ultimately it’s not their call. Many lawyers involved in the January 6 proceedings have said that if video of what judges were doing there had been made public, there would have been a revolution. At least the prospect of public scrutiny might make judges more cautious, and less imperious.

Going further still (in some sense) Congress should shrink the number of judicial law clerks, or abolish the institution of law clerks completely. The Supreme Court had no law clerks for the first century or so of its existence, and the quality of the opinions from the law-clerk-less era seems, if anything, better than what we’ve seen since. The opinions were also shorter and had fewer footnotes. (Personally, I’d also like to see a rule that no Supreme Court ruling is effective unless the opinion explaining it is joined by an actual majority of justices — none of this business of parsing together plurality and concurring opinions to try to figure out the “real” rule of the case.)

These are all things that could be done with the existing legislative majorities, and that would do more to address existing problems than impeachments, with less of a downside. Please feel free to add any suggestions of your own in the comments.

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