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DISTRICT JUDGES FIGHT TO DEFEND THE LAW. DOJ AND SCOTUS SNICKER.  
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Joe Patrice
October 24, 2025
Above the Law
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_ Lower courts are holding the line against authoritarianism while
getting death threats and zero backup from above. _

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If democracy survives, it’ll be because a handful of sleep-deprived
federal judges refused to let it die on their watch. Federal district
judges are overworked, under-resourced, lied to, and gaslit by
contemptuous government lawyers, beset by violent threats — and
still somehow remain the nation’s last functioning firewall against
authoritarianism. That’s the best way to sum up the judges’ panel
from the Society for the Rule of Law summit
[[link removed]] this
week. Three retired judges — Judge Paul Grimm of the District of
Maryland, Judge Nancy Gertner of the District of Massachusetts, and
Judge Michael Luttig of the Fourth Circuit — spoke for an hour about
the dire challenges facing the judiciary. The portrait is bleak, but
the district bench continues to perform heroic work.

Moderator Ben Wittes of _Lawfare_ — who quipped after the fact
that the whole panel was off the record
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set the tone off the top, asking the judges to weigh in on his sense
that “the district bench has been somewhere between excellent and
spectacular.” Judge Grimm described their work as the “line in the
sand,” Judge Gertner applauded the district courts for “meet the
moment in a way that I think is extraordinary.” Judge Luttig, as the
appellate representative, said of the judges wading through the
mountains of litigation spawned by the administration’s chaotic
policies:

They have brought further honor to the lower federal bench, at a time
— the most important moment in all of American history. When the
nation needs the federal judiciary, more than it has ever needed it,
and will ever need it again. To the judge. And to the court. The
federal judiciary — the _lower_ federal courts — have honored
their oath and they will continue to honor their oath.

I suppose one benefit of the Trump administration’s selective
harassment of people in historically Democratic jurisdictions is that
we don’t need to know how judges in Amarillo
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Pierce
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rule. So let’s just celebrate the district courts generally and not
dig deeper.

And they’re having to do their part for the rule of law while
dealing with a federal government exhibiting outright contempt for
both the law and the judges themselves. Judge Luttig, the reigning
Cassandra of the collapse of the rule of law
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placed the blame squarely on the absence of good faith within this
Justice Department:

The arguments that are being made… by the Department of Justice
attorneys under Pam Bondi are contemptuous. Not just of the
Constitution and the rule of law, but contemptuous of the federal
courts, and even, if not especially, contemptuous of the individual
judges that are hearing the cases. Not only has this never happened in
all of American history, not one argument, but the arguments that
these people are making to the federal courts has ever been made in
American history, dripping with the contempt that these arguments are.

It’s also a government that is bald-faced lying to federal judges.
Judge Gertner described the challenges when judges can’t count on
the parties to tell the truth:

It’s not just an issue of the arguments they’re making. They’re
lying. They are misrepresenting things. One of the things I thought
after Trump was elected, and when the political debate made it into
the courts, one of the things we know about courts is that there’s a
level of civility. That then lawyers, true to their oaths, will not
lie, will not misrepresent, will not say they do x and do y. What is
the most shocking of all — at a time when you’re always shocked
— is that that’s not true. That’s not true with respect to the
Department of Justice lawyers. They will say x, they will do y, and
recent whistleblower accounts suggest that they are openly and
brazenly misrepresenting to the court. The system fractures what it
happens.

She cited a Just Security study detailing 43 cases where the DOJ made
serious misrepresentations to the courts
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Unfortunately, the district bench isn’t getting the support it needs
from some on the appellate bench and none at all from the Supreme
Court. With fewer resources, district courts are churning out massive
opinions in the middle of the night
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artificial government deadlines, racing against a government that’s
proven willing to disregard its own pledges to ram through its wishes.
Meanwhile appellate judges auditioning for Trump’s Supreme
Court _papabile_ list muse about whether or not Donald Trump should
have the unreviewable power to send SEAL Team 6 to assassinate anyone
in an inflatable frog costume
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And the Supreme Court continues to drop unsigned two-paragraph orders
before heading to bed. For all the issues with the Supreme Court’s
expanding use of its shadow docket to effect practical change without
the benefit of argument or a full record, Judge Luttig adds that these
opinions are, on their face, illegitimate:

The Supreme Court has no power at all in our system and
government, EXCEPT that power that comes to it by virtue of his
reasoned, opinions of constitutional law. Whenever the Supreme Court
is acting without opinions of law — at all — let alone, reasoned
opinions of law. It is acting illegitimately, period. It doesn’t
have the power of the purse. It doesn’t have the power of the sword.
The only power it has, and the only power that it has to wield on
behalf of the American people is the power of its persuasion.

And yet, the conservative majority of the Supreme Court grows
increasingly agitated that the district courts aren’t taking these
Post-it note opinions and elevating their vibes over established
precedent. Judge Gertner pointed to the Harvard grants case, where
Judge Allison Burroughs drew upon Justice Jackson’s admonition that
these shadow docket opinions are nothing more than Calvinball
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rationale for treating those opinions as precedent. Or, to put it the
way Judge Gertner did in a recent article, the shadow docket has
“all the formality of notes on a napkin
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Why is the Court so hot over district courts following these shadow
docket opinions as if they’re precedent? Judge Luttig noted that
“there’s no logic to it at all, but there’s _thinking_ to it,
and that’s what we need to be concerned about.” For an
administration focused on upending the rule of law as quickly as
possible, converting the shadow docket into a rapid-fire precedent
machine capable of tossing thousands of pages of considered lower
court opinions in an instant is an essential tool. I’ve previously
suggested that the Supreme Court majority also hopes to hedge its bets
this way — commanding lower courts to keep issuing Trump-friendly
rulings without actually disturbing precedent so they can return under
the next Democratic administration and declare “just kidding, good
thing we never _actually_ overruled these cases!
[[link removed]]”
No one on the panel went quite that far, but they did point out that
the Supreme Court’s actions sought to push off having to grapple
with the substance for years, which certainly backs that up.

This reckless shadow docket behavior inspired 12 judges to call out
the Supreme Court for its role in driving violent threats against the
judiciary
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“The level of personal attacks and threats against them has been
beyond anything that you could imagine,” Judge Grimm explained. “I
think if the American public actually heard some of those threats,
that they would be appalled. And you would not know — _for a
nanosecond_ — from their actual rulings, that the judge was
appointed by either a Democratic or a Republican president.” He
proceeded to quote one specific threat a federal judge received and it
succeeded in appalling the audience. “We are going to rape your
daughter in front of you, cut her head off so the blood splatters on
you, then rape you, and kill you,” he recounted the threat.
“We’re at the point where the Marshals Service has said, that
there are over, I think, this year it’s almost up to 500 credible
threats against U.S. district judges.”

Of course, Chief Justice Roberts offered his thoughts these
threats in his annual report this year
[[link removed]], in
much the same way one might respond to a fire by calling in a noise
complaint on the trucks. Judge Grimm notes that nothing has really
improved since that report. Instead, the administration continues to
bash lower court judges publicly — as Judge Cullen noted in a
recent opinion
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and the Supreme Court only takes time out of their busy vacation
junkets to write concurrences blasting judges for not doing their part
to follow the Court’s lead in placating the administration.

It’s difficult to describe Judge Luttig as anything but furious at
this point. The ideals that he’s devoted his life to upholding have
become a punchline to the Department of Justice and a supermajority of
the Supreme Court. He summarized the crisis — the lying, the
contempt, the abdication of the Supreme Court — by describing the
impossible situation the courts are in when there’s no mechanism to
hold the lawless accountable.

Every day of the week, for the past 10 months, judges like Judge
Gertner and Judge Grimm are facing the President of the United States,
and Attorney General of the United States… lying to their face.
Lying to the judges. The prosecutors are lying to the federal courts.
Meanwhile, outside the courtroom, the President of the United States,
and the Attorney General of the United States, are trashing the
federal courts. Trashing the individual judges. Calling them every
name in the book. Never in American history has this ever happened.
And these people who are trying to do their job under those
circumstances, are looking up at the Supreme Court of the United
States, who they know, TO A VIRTUAL CERTAINTY, would reverse them in
a second if they held Donald Trump in contempt.

The only thing standing between American democracy and complete
collapse are a bunch of constantly threatened district judges and
their clerks sorting through government gaslighting to write opinions
at 2 a.m. because someone has to. The foundation is, for now, holding.

Everything built on top of it is either crumbling or actively trying
to knock it all down.

_JOE PATRICE [[link removed]] IS A SENIOR
EDITOR AT ABOVE THE LAW AND CO-HOST OF THINKING LIKE A LAWYER
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FREE TO EMAIL
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TIPS, QUESTIONS, OR COMMENTS. FOLLOW HIM ON TWITTER
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INTERESTED IN LAW, POLITICS, AND A HEALTHY DOSE OF COLLEGE SPORTS
NEWS. JOE ALSO SERVES AS A MANAGING DIRECTOR AT RPN EXECUTIVE SEARCH
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_Above the Law takes a behind-the-scenes look at the world of law. The
site provides news and insights about the profession’s most colorful
personalities and powerful institutions, as well as original
commentary on breaking legal developments. Above the Law is published
by Breaking Media
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* federal courts
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* SCOTUS
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* DOJ
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* rule of law
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