Lawfare Daily: The Court Against the Courts with Steve Vladeck and Kate Klonick

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By Octopus Energy, Vexels, you are completely ready to pay. Now, on Octopus Energy, the E-vexel and with the bonus code Octopus 1-1-5, a 115 Euro Vexelbonus decision. We have the Supreme Court 1 issue in these days to changing the rules for what this reports can do, well, allocate non-applying those rules to itself. And then 3, as all of these attacks from outside are happening, like doing nothing to stand up for the district

judges. It's the Law Fair podcast, and law fair live on the sub-stack. I'm Kate Klinick, Senior Editor of Law Fair with Steve Latic, Professor of Georgetown Law, author of the incredibly prolific

sub-stack, one first, and the New York Times best-selling book, The Shadow Doggit.

It's not a push to undermine Moesburg as such or boardmen as such or judge Suknan in as such. It's an effort to basically say federal district courts aren't important. And

“that's the effort that the Supreme Court has not signed on, but has like, I think done”

a lot of really, really unfortunate things to facilitate. Today we're here to talk about his new keys. This year's Harvard Law Review Forward on the Supreme Court's role in the crisis-facing federal district courts. So, last time we had you on subject life. I stumbled across this freezing, the court's versus the court, and you were like, "Oh,

it's so funny you say that framing, because that's the title of the, and I felt like the best student in class." But you were like, "I am writing a Harvard Law Review, I'm Supreme Court Forward with that exact title, which I have now read and in full." And I am so excited to talk to you about it today. But like, I don't think a lot of people know what the Harvard Law Review Supreme Court Forward is, and it's its own institution within

legal academia. It's like, yeah, it really is. It's a very, very big deal. It's the piece

that every court watcher reads first. And, you know, I'm kind of interested to kind of,

I don't know if you can give us any more of a history around it. I mean, legal academia has been going through some changes lately. Like, like, a publishing has been going through a lot of changes. Like, even like, the import of law review articles has changed dramatically in the last few years. There really was this time in which Law Review articles were supposed to be this avenue to influence for the court and the courts when there was

a question of first review or things like that. They would take in the ideas of scholars and the other that happens around the edges here and there. But it certainly has kind of lost that to a certain extent that type of, like, seeing, being seen as having that type of power. But the forward remains one of, like, the kind of, the major ways that you kind of have a direct, I guess I would call it, like, a tin can stretch between two balconies

like with a, like a thin string, not everything will get through perfectly. But definitely something will get through. And so I'm kind of, I'm interested why you picked exactly this topic and what, you know, what and this title and decided to frame it this way. It had to be a really kind of interesting moment for you. Yeah. I mean, it's been really cool. Um, so I guess I'll, let me do two minutes on just sort

of the history because I didn't feel a bit in the context for folks who aren't, like, a lot of professor nerds. Um, so, um, a four, like, in the 1920s and 1930s, um, there was this, um, fairly well known and harder, law professor named Felix Frank Fürger, um, who wrote a series of larvae articles under the title, the business of the Supreme Court. And Frank Fürger, together with sort of a shifting series of students in general colleagues,

um, but I have James Landis was the most frequent contributor. Um, basically Kate every year, right? He published an article that was like, hey, here's this year's, like, meta

of these pieces that it was not just a, like, you know, recitation of what the Supreme Court decided that term. That was an analysis of, literally, the title, the business of the Supreme Court. And a lot of that was sort of logistics and finances and the courts case load, like all, you know, all the nerdy stuff that, like, institutional, like

“me, I think I've always cared about more. Um, so Frank Fürger carries that project”

through all the way through the 1930s until he ends up on the Supreme Court when you can't really do it anymore. Um, and then Henry Hart tried to pick it up for a couple of years, um, but then Hart went into the government, you know, during the during World World War II. And so it sort of falls by the wayside. Um, in 48 or 49, the Harvard Law Review sort of relaunches what's now a full issue devoted to the prior Supreme Court term. And

it, you know, it becomes the, the first issue every year of the Harvard Law Review. It really

becomes the flagship issue of the Harvard Law Review. And, you know, the very, very first one of these has a short piece that's literally just called the forward, um, which was meant Kate as, like, a classic, like, two, three, five-page forward. Like, yeah, yours was a little longer than that. So, it's a change. But, like, so, right, so Louis Jaffey wrote the first four, and it was basically like a summary of everything else was coming. As time

has gone on, just to sort of brainstorm a quickly from 1949 to the present, the forward has become, like, the lead article in the Supreme Court issue. Um, and it has really become, like, the, you know, most visible if nothing else, right, single annual piece of legal scholarship about the Supreme Court. Um, and, you know, every year, the editors, the Harvard Law Review invite somebody to write the next year's forward. And so this year, that

fell to me. Um, you know, I didn't ask them how many people said no first. I was probably,

like, the, the 41st first on the list. Um, right. You don't really say no to the Harvard Court for Steve's being humble, but anyways, yeah, go ahead. But it was a, but no, but so, but you know, and trying to know like what the topic should be. I really like struggle with this because there's so many different things to say about the current Supreme Court. And, you know, um, you can only write, I mean, that they really do have a limit of 40,000 words,

which I might have gone right up to. Um, and so what I really wanted to do, because I wanted to try to do two things in the forward. The first was to, like, honor the, like, frank further heart tradition of not just writing about the big cases, right, of not just writing a doctrinal piece about like the unitary executive theory after slaughter, or the voting rights after Calay, like I really wanted a more institutionalist take on the court. But the

second thing I wanted to do is I wanted to try to like say something about the term that

“no one else was saying. Um, and that's why I kept coming back to the relationship between”

the Supreme Court and the lower federal courts, especially federal district courts, where I really have thought for a while that there's this increase in gap between the justices and district judges. And that kid, some of that, because I don't think the justices fully appreciate how bad things are for district judges today. Um, and so I really wanted to write a piece that both one told the descriptive story of just how insane life is in many federal

district courts today. And then to try to sort of ask and answer the question of how much the Supreme Court is responsible, um, for at least some of that insanity and for some of the difficulties that the district courts are facing. And so that's the, the basic ambit of the forward is like, you know, things have gotten wild and the Supreme Court is kind of responsible for a lot of it. Yeah. No, and it comes across as that, and it's

incredibly in my view and incredibly sociologically important piece of institutionalist because it gives this kind of sociological and institutional description that I don't think ever get services in any decisions. It gets surfaced in news reports. And I'm sure that there are things that peace meal come through to the court. Um, but like we said before, tin can bullhorn whatever this is to kind of amplify this message to the court. This is also

“I kind of want to say like, yes, the forward. I like, I framed as a former, I think of”

the forward as forward looking. Actually, even though it always looks back on the court,

because I do think every piece pretty much lands with what the import of like that term is going to be and should possibly be normatively should be for the court going forward. Like what they should see as their responsibility with the information that kind of the forward synthesizes for them. And I think that that's a lot of kind of what you do here. And so to this, your story is quite stark. And I'm quoting here. He said, the story of the Supreme

I loved that framing. Obviously, it's one that came very naturally to me, but unpacked for listeners. It's not just the court, like the Supreme Court failed to shield district judges from impeachment, threats, and harassment campaigns, right? But that it bears significant responsibility for this moment. It's like it's not just you haven't done your job. You have invited this. And I think that that is such an important framing here. I hope that's true.

“I'm glad to hear that, because that's what I was going for. Yes, I think it's really important”

to build out both of those points, though, right? So, you know, the first point, the sort of the foundation is the script of account, right? So part one of the paper is basically like,

hey, here's what's actually happening in district courts today. Because I think a lot of

folks encounter that Kate as like anecdotes that they read in the news as opposed to being confronted with the data of like just how wildly overcrowded federal district court documents. I mean, there's one data point in the piece about the southern district of Indiana, right, which is basically, you know, not a hotbed of national federal litigation, which had zero immigration detention cases in 2023. It had one in 2024. And since January, first of last year, it's had

453. Right? Like, most of all that by 93 district courts, right? So yeah, these are not courts of general jurisdiction, just to be clear. These are numbers that you see in state

local courts. This is like, which have always been overcrowded. Oh, he's had this problem. But

these are, why those numbers for federal courts. Great. So you have, so you have federal district courts that are flooded. You have federal district courts that are getting these

“super high profile, really important and fast moving cases. These cases are like hyper expedited.”

You have federal courts that are, you know, repeatedly being sort of stayed by the Supreme Court with no explanation as to why. So they're trying to guess what the Supreme Court wants them to do. You have federal courts being attacked by President Trump directly, by a, you know, acting attorney general blanche, by Stephen Miller, by, you know, right wing media. And then you have the Supreme Court sort of not just pausing those rulings, but the court doing two additional

thems. One is the court, in some cases, openly criticizing district courts. So just as courts it's wrote, this really tend to anxious concurrent opinion, right, last August in the NIH case, where he accused three different district courts of defying the Supreme Court for not following unexplained or thinly explained orders in other cases. But Kate, there also these doctrinal moves the court has made to make district court's lives harder, right, by cabinian universal injunctions

in CASA last June. By foreclosing nationwide administrator procedure, act review of alien enemies act cases, which could have long since resolved the legality of President Trump's effort to use that statute. You know, my sort of favorite nerdy Fed court's piece, a statute called the Tucker Act, which is a hyper technical statute that sends cases about federal contracts and federal money from district courts to the court of federal claims. We might not care about that except the court

of federal claims can't issue injunctions. And so, right, if you're suing over, you know, five

million dollars or five hundred million dollars of federal funding being cut off. And the best you

can hope for is three years from now, maybe you get some of the money back, right? And so you have the Supreme Court, one issue in these days, two changing the rules for what district courts can do. Well, well, okay, not applying those rules to itself. And then three, as all of these attacks from outside are happening, like doing nothing to stand up for the district judges. And, you know, just before anyone sort of gets, because it's two out of time, Chief Justice Roberts has said

exactly two things, right, publicly in the last 18 months about these times. Last March, after President Trump said that Chief Judge Bose broke should be impeached. Roberts gave a statement to the media who says, "We don't impeach judges when we disagree with them. We appeal their rulings, rousing defense that was." And then this March, in a not very well-publicized event at Rice University, Roberts said, "These attacks have to stop," unquote, without referred

without saying which attacks he was talking about, right? That's been it. Like, that has been all he has said, and no one else on the court, you know, has really said much of anything. So,

“that this is why I think the Supreme Court is not just a passive bystander to the, you know,”

mounting tensions between the executive branch and the lower federal courts. It's why I think

Yeah, no, I think that you make a very compelling case. And I do kind of want to talk about kind

of some of the pushback that you've got not at, because we're kind of talking and chatting

“before the show. I was like, "No, I think it's really well argued." I mean, there's other”

problems with like an institutionalist, other things that I want to get to later about kind of solutions to this problem and how we see the court generally. But I think that you lay out a pretty compelling case here just in the facts. And so like, what are the, what are the, what are the, what's the criticism that you feel like you're fending off or the way that people see it? Are there people, I mean, so I wanted to say that there's people who might not agree that like the court is all

that, which is I guess kind of one type of type of argument. I don't want to kind of talk about that.

I want to talk about people who disagree that it's the court versus the court, that there is

this type of dichotomy that has like emerged and that as an institution, it's kind of a problem. And so like, I'm just kind of curious. What is even, what is even the counter argument to some of these things? So I hear that the counter argument comes in two forms. I think one form, right, is that the lower courts are just being correctly disciplined by the Supreme Court, right? And so,

“the court against the courts, like that's how our system works. We have a Supreme Court,”

so that the Supreme Court can step in when, you know, the lower courts get stuff wrong. But you know, I guess I'll just say like that's an interesting point given how little of the pieces about the substance of the court's rulings in these cases, right? Like, you know,

this is not like Judge Smith was right in case A, and the Supreme Court was wrong to reverse her.

No, that's not the argument here. The other piece of this is that like some of the behaviors, right, the district courts have engaged in their own the Trump administration, right, have been aggressive. I mean, and you know, there's just no, that no, if they answer a bunch about that. I don't know that that sort of condemns them in any way, but like the notion is that like the, the critique I've heard that the paper sort of assumes that the district courts are right,

which I don't think is a fair reading of the paper, right? But I think is the, is the critique I've heard. And then that has to do more to serve defend that. Well, I was going to say that like,

“there's not more to defend. I think the most of what you end up kind of showing in this not to like,”

not to make your argument for you, but what you most of what I would say to someone who's like, most of what you end up showing is actually very statistically kind of balanced. A lot of it is in the numbers, like the like what like the number of things that have happened over time, the delta between five years ago and today in terms of like volume in terms of the types of threats in terms of the number of appeals in terms of the size of the shadow docket in terms of all of these types of

things, you don't actually get a ton into the nitty gritty of like the thinly recent things, where anything like that or the number of like appeals on like that were overturned, there's nothing. Actually, in the piece about that, it's all about kind of the actual running of the court, and through like the relationship, I would say, between the courts and the court. I think that's right. Okay, and I think that's I think that's well said, but I would also add one

other point, which is part of what I wanted to do, part of why I find this critique frustrating is because they're actually like why I wrote the piece the way I did. It's very balanced. No, but like there's there is I don't post on Twitter anymore, but I still sort of lurk a little bit because that's where you know, a lot of the sort of right way in a lot of people are still talking publicly, and you know, judge bur, this is a good example of something to happen this week, so judge burrows

issued like an administrative stay in the Somalia TPS case, judge burrows the district judge in Boston, and you have the listener general of Iowa publicly like, you know, going after like, this is completely crazy, this is not something judges do, like judges did this shit all the time during the Trump administration, where were you guys? But also like, hey, I'm going to cherry pick one district judge who's done one thing that I have a problem with and use that to indict

hundreds of district judges right from across the entire country who are just doing their job. And you know, it shouldn't matter, Kate, that so many of the judges in these cases are Republican appointees, but they are. And when you have like that many judges in that geographically diverse a cohort of cases, you know, it comes a point where like saying, oh, but judge x in place y got this one wrong, is not a response, right? It's just, it's just, you know, an outlier in the data set, and that's fine.

I'm, I'm all for outliers, right? But don't let the sort of the outliers come to define the the rest of the field. Yes, speaking of outliers, one of the things that I and Ic data Lee have noticed

and what I mean by that. So some rhetoric, rhetoric? Yes, exactly. That's not that they're illegal. It's that they are not based in legal realism, or at legal realism, excuse me, legal reasoning.

And so very specifically, I mean, just to, this is like the first thing that kind of pops

to my firm like Judge Dirty in like the, in the case of Mark D.V. Missouri, and I wrote, like an entire, like near times up at about this, because it was such an unhinged opinion, but it was in 90 pages, citing to Orwell. It's like, since when is Orwell, like, or even in, even the constitution, the declaration of independence is not like a finding authority in any way, like all of these types of references. And I'm just like, this isn't even, this is just, like,

this is, this is an entire 90 pages of political rhetoric. This isn't even a legal decision. And okay, so I wanted to say for a second, we had Dirty who's like a very kind of a Trump appointee, very kind of well, like established kind, you know, conservative justice, who was reversed by the Supreme Court, or and like he had, like Anne Romand. Oh, yeah, this is my mug of Daphne Keller, testify in Congress about Mark D.V. Missouri. And anyways, the, but, like that

case, I have to say a bunch of people have celebrated in the last year or two, since Trump didn't go over liberal judges, or so-called liberal judges, writing these, these like district court judges, writing these kind of very out of the box opinions, ones with pictures in them, or like letters that they got to their court, or that were death threats, or think, which is like, you know, which to your point is like, it's kind of crazy and signals like this type of this type of mum.

I'm like, I just feel there's been this. I don't like that people are like, what an odd, what a fire opinion. I'm like, this opinion is part of like the reason this entire system is broken.

“It's even when it's like something to agree with, you should not agree with like the fact that”

the forum has broken down so much that this is how we're having the discussion. And so I'm kind of interested in your take on kind of that, and whether that is just like a sheer, it's happening more because there's just sheer desperation from the district court to reach like anyone to help them. It's such a rich, I mean, there's, there's a lot, there's such a rich question. I guess I have,

I have a couple reactions, right? So the first is, you know, I think one of the most important lessons

of all good legal writing is, you know, to show, not tell, right? And the most effective legal writing is writing that shows without telling, right? Like that persuades the reader without saying, I am persuading you. And so, you know, I worry a bit about the turn in judicial opinions, Kate, which I did to like, maybe the last decade. Yeah, there's more of it for sure. Like, look at me. On the flip side, I mean, if you are, you know, if you are someone who is wary of

“crying wolf, there's still the very real possibility that the wolf's gonna show up. And so I think”

the part of the problem is that you have judges who are seeing behavior from the government. They've

never seen before, who are seeing threats they've never received before, who are seeing who are, you

know, was dead in a taxi, never had to was dead before. Trying to make sure that people actually know how bad it is. And they don't have a lot of outlets besides their decision, right? They're not gonna go give press conferences. They're not gonna go on, you know, TV shows. They're not gonna go on, you know, law fair life. And so, you know, I think part of what's going on is that the judges are trying to draw attention not to themself, but to the lawlessness they are condemning. And, you know,

there was this remarkable moment earlier this year where an entity, I suspect, almost no one's heard of called the Codes of Conduct Committee of the Judicial Conference of the United States put out a new advisory opinion, basically encouraging judges to talk publicly about threats to the

“rule of law. So, I think, you know, every judge has to sort of walk this fine line between not”

sort of opening themselves up to criticism that the opinion undermined its own credibility, right? While writing opinions that are gonna break through, because there are so many of them. I mean, Kate, you know, this like, you know, 15 years ago, if I was trying to pay attention to all of the super newsy, like federal circuit court decisions, right? I could probably check in once a week and figure out, hey, what happened this week, right? Now at like 430 on a Friday afternoon,

you'll get three of them in quick succession, and they're each like 100 pages long.

work that you have had to do to keep up with all of this stuff. It is unbelievable.

But, but so this is all just the way of saying it like, I don't blame judges for trying to draw

“attention to conduct that they believe is outrageous. I think the key is just like, I think there's”

let me just take two examples. I think there's a really big difference between judge berries, five-page Bible passage laid in habeas grant in the case of the five-year-old from Minnesota, right, which wasn't really a judicial opinion at all. And judge raises, like 83 page, you know, Haiti TPS rule in, where the only pictures she used were screen shots of the government's own pleats, right, and like, and the rhetoric that she relied upon was the government's rhetoric, right?

And so, I, you know, I think district judges are really in a bit of a pickle, and that's part of why I wanted to write the forward was because I don't think books appreciate that this is happening all over the place and not just in D.C. and Boston. Right, like, I think there's this anecdotal sense out there that almost all of the big cases are in D.C. Boston and maybe Maryland, maybe Greenbelt. And in a certain case, well, so right, so that what that that wipes off the map,

all what that happened and has happened in Minnesota in the last seven months, right, there have been huge cases in Oregon in Seattle, in Chicago, Georgia. Georgia, I mean, like, you know, Texas, I mean, some of the important immigration detention cases have been in Texas, like, so, you know, yes, like, this sum of this is for a shopping toward judges who folks think might be ideological sympathetic, but a lot of it isn't, and even, you know, then the data set suggests that

this is not just, you know, what we saw during the Biden administration, which is a handful of hand-picked district judges in Texas trying to dictate national policy. This is, you know, a universe of judges from across the country, looking at an executive branch acting in ways they've

never seen before. Yeah. So kind of on that, no, let's talk about Trump versus JGG and the DHS versus

D.V.D. cases. Um, cases where the government kind of had a brutally disdait the defied the underlying district court order and the majority didn't even seem to acknowledge the defiance, let alone explain why it didn't matter. Um, and so I'm kind of like, what message is that sending to litigants? Is that part of like what you're kind of seeing kind of terrify or in your, you kind of what what district court's are reacting to? Because when you said it, like, they've never

“seen this behavior before. I think that they're really the lack of preparedness on behalf of the”

government, but also this, like, shared, like, kind of nervous, nervousness. I guess it's like, for lack of like a better term, like the lack of respect that really guides, like so much of the court. I think it is one thing to talk about the courts and be outside of them. But if you go and you sit in a court, everyone is dressed for court. Everyone stands up when the judge is there. There is a way that a judge commands a court, particularly I would say a federal court. I'm not even

enough. I'm like the opposite of a formal person. And I find a calmness in kind of the, the rigor and like kind of the, the, the civility and the normative, like kind of wrote, um, this is how we behave type of behavior that like happens in courts. And I'm like, you know, such a rebel and heart, you know,

I never, you know, shaved half my head while I was burking and would flip it over when I go back

into court. But like that was like, you know, but I flipped it over because they, we didn't want to be disrespectful. You know, like it was like that type of thing. Uh, so I just really, like, what's going, like the fact that they're defying orders is mind boggling. Um, also Bozberg has just gotten so jetty Bozberg has just taken like fire rose from this. And I feel like there's something to kind of say about just his entire two years, like bar everyone else. He has just had this insane

“level of scrutiny. Well, he's, I mean, he's become, I think, a foil, right for a lot of it. Um,”

by the way, my, my rebellion, my clerkship was wearing jeans. Um, so, yeah, we all, you all rebel in different ways. Um, you know, I, I love the idea of using Bozberg as a foil. So I think, I, I think it, it illustrates a lot. So, um, jet, jet Bozberg is the chief judge of the DC district court, which has been for obvious reasons ground zero. Um, for a lot of these cases, it is, I think not a majority cape, but a plurality of all of the sort of nationwide challenges to Trump policies have

been brought in DC, um, which of course, the crazy people on the right say, see, they're forum shopping. I'm like, they're suing the federal government. That's where you do it. It's where you do it. It's where you do it. Right. Um, but so, so Bozberg, um, you know, got his fair share, um, by the way,

DC superior. I'm sorry, I'm saying Bozberg, W. appointee, kind of the Pfizer court and the most

“secretive kind of national security compliant, like courts that ever was. I mean, but it's not a”

prompting. Not if you could raid Bozberg on a scale, I'm not, I'm just going to say, as you could raid Bozberg on a scale from one to 10 of, like, conservative leaning. I would have put him at the solid eight and a half nine, like, no, I mean, maybe, I mean, I was, I would have said, I would have said, five. No, of course. Five, really? So, there's, there's, there's a whole universe of democratic appointment did judges out there and some Republicans who just aren't that political, right? Who are

centrists, who are smart lawyers, who spend a lot of their careers in the government, usually historically as prosecutors, although President Biden has tried to add to the ranch with public defenders. And Bozberg's one, he's a classic former prosecutor turned judge. Oh, yes, but he is,

“but I would also say that, like, from just subsequently from his days in the Pfizer court, like,”

that is, like, that puts you, that puts you a little bit in kind of, in a, in a, in a valent, that, I'm sorry, that puts you in a valent that is a pro-government balance and is a prosecutor, like a little bit. Okay, but I will say that he's, he's a sharp, fair-minded legal mind, like he's not in the pocket for anyone, is I guess what I'm saying? And if he was going to be in the pocket for someone he wouldn't have ever put him in the pocket, going against the government

and administration is like, that's not where this man was coming from, I guess, is like, that's

not where you would have said about him. Well, so, so, I mean, the reality is, is that so much

of this administration's behavior has not survived contact with federal judges, because no matter who the judge is, and no matter who appointed the judge, right, one of the reasons why we have judges is to call bullshit, is to require people to swear things under, oh, is to require lawyers to file things under penalty of professional misconduct charges, you know, why, why are all of these baloney prosecutions collapsing, right, as soon as they reach any scrutiny in the federal court,

it's because the judges are looking at these indictments and are saying, are you fracking kidding me, right? So, those verb got one of the really visible early cases. He got the alien enemies case, which, you know, in its initial carnation was JGG versus Trump, and let's

were one of Irrig Irvini, like stepped down over and whistle blew on now, third, circuit justice,

bovey, you know, about kind of like how he was instructed to basically stand up and blow, fly, fly, fly, fly, yes, and blanch, yes, and blanch, yes, so. So, but so, so, but so, what's really,

“well, I think folks don't remember about this case, is that the only reason why Boseburg had a chance”

to rule at all in a way that was then defined is because the ACLU caught wind at like 11 p.m. on a Friday night, that the government was about to sort of, you know, remove all these folks on the country, and then announce what they were doing, like $1,000, and so like this was all a sneaky operation to begin with, right, and Boseburg says, you know, slow down everybody, right, like let's hit the brakes while we figure out whether you're allowed to do this. And the government just, you know,

runs right over, you know, even though I think what there were two planes in the air, and Boseburg says on the record in the hearing, I want you to turn the planes around, right, and the government's position is that because he didn't separately memorialize that in a written order, it wasn't actually an order that they, you know, were bound to follow, which is like, that's just my god. I cannot believe when they had to go back into court the next day and say that

to the judge's face was like, oh no, you didn't write it down, so I didn't think I had to listen to you. It's just like, I can't, yeah, sorry. I just like, I would, I don't know if I could have that come out of my mouth to a judge. But so the real problem though here is that, you know, so Boseburg issues these TROs. Now the

TROs end up not being effective to stop the first two flights, but Kate, nobody has been removed

from the country under the alien enemy's act since, right? And so, like, not only that, but you had, like, I don't know if you remember this, but I clerked with her, so I remember this, but

which case it was at the time, but another immigration case, and she literally was like, I'm here at, like, we don't have, we don't have hours at the court. We will come and have this. I will wake up at 2 o'clock in the morning and come in here at 6, and like, issue these orders at any point. And the specific reason she cited from the bench was that, like, I don't want you putting people on planes. And I mean, it was a presidential moment. It was a wake-up call for the

for judges that, like, they were, they were running up against this, the, it lost trust between the government and the, and the courts all over the country. Like, I'm, and I'm, and my favorite example of this is what happened in Maryland. So, you know, this is probably gotten memory hold because there's just too much to get track of. But the entire federal

district court for the District of Maryland entered a standing order that basically said,

the second a non-citizen in immigration detention files a habeous petition, we are automatically

“staying their removal for, I think it was 72 hours. I, I might have the time and not quite”

right, right, which was like only made necessary because of the number of times the government had removed people while they had habeous petitions pending. Right. And so you have a district court saying, we're going to stop this by staying everyone's removal. And, okay, you probably remember this, the Justice Department sued the district court. Like, there's a lawsuit out there right now called the United States versus Russell, where, you know,

the, the, the, the, the, how dare you district court issue an order stopping us from violating your orders. Like, that was just, leave a claim. It's crazy, time, Steve. It's crazy, times.

So, so, so, so they come back to Bozbrook for a second. So, the reason why I think Bozbrook

is such an interesting foil is because JGG was this visible example, the case goes to the Supreme Court on an emergency application. Right. You got a five four ruling from the Supreme Court that holds on very dubious technical grounds that the cases should have been brought in the districts in which the detainees were being held as like district-wide habeous petitions as opposed to one nationwide APA action. But meanwhile, right, you have the government

getting the emergency relief and the context in which it had unclean hands. And, yeah, Justice Sotomayor made this point expressly in her descent. She says, by giving the government relief here, we're, you know, we're telling them not only that they face no consequence for what they did in the district court, but that they can do it again. And so, so right, so back to the forward, like, this is the point that, like, that's not a passive Supreme Court. That is a

Supreme Court affirmatively incentivizing this kind of behavior. And then you have all the impeachment stuff. So, right after that, there's this ground beat to impeach Bow's bird. Right.

“It starts as a sort of argument about the JGG case. They realize I think pretty quickly that”

that that's so transparently believed here. I want to actually just pause for a second. If that's

a really important point here, who is they? Because this is not like, this is important. Or do you not want to say? No, I mean, I think I think there's no question that there is court, and I don't know who the first mover is, right? There's no question that there is sustained coordination in this between the White House, the Justice Department and Congressional Republicans. Right. And, you know, Ted Cruz holds a Senate subcommittee hearing in January

about impeaching Bow's bird and Marilyn District Judge Deborah Boardman. He's not doing that on his own. Like, he's doing that because, you know, it's part of this push. And I think, this is the problem. The pushes to de-legitimize federal difficult. Right. It's not, it's not a push to undermine Bow's bird as such or boardman as such or, you know, Judge Suknan in as such. It's an effort to basically say federal district courts aren't important. And that's the effort that the Supreme Court

“has not, you know, like signed off on, but has like, I think done a lot of really, really unfortunate”

things to facilitate and to enable. And that's, you know, just one data point. I think we are now up to 13 different federal district judges against whom impeachment resolutions have been introduced in the House of Representatives. Do you know how many were introduced during the Biden administration? How many? Zero. Really? Yes. Yes, because for a shocker, because it's not something that normally happens, slash ever happens. Like, it's not the thing that you do. You can, though,

there was plenty of sharp criticism directed toward district judges like Matthew Kesmarrick or Drew Tippedin or your buddy, Terry Dowdy, right? Like, they're on my screen. It's name Ron. I think it's Dowdy. But, um, okay, I just like, oh god, yeah. But whoever you know, this is the judge

that there were criticisms of those judges, but there weren't personal attacks and impeachment efforts as part of this campaign to delegitimize the federal court to writ large. And this is, so back to, you know, you asked me before about the criticism on getting, like some folks have

said, well, aren't you the guy who was so critical of Matthew Kesmarrick, right? This is my me and

either Jones, the fun we had at the 2024 federal society convention. And like, yes, I was sort of

“critical of Kesmarrick. You can criticize individual judges, what you should not be doing as undermining”

the integrity of the federal judiciary. And I think we've crossed that line over and over and over again. I mean, it's like, from friends, the line is so far behind as the line is a dot to us. Point. Um, and the Supreme Court is helping. Like, the Supreme Court is not like, hey, let's go back to the line. The Supreme Court's like, oh, let's help. Let's, let's push you further away. Like, that's, that's really the animated important of the forward.

Yeah. No, I think that that, and I want to get to, I'm going to get to Kassin, like, one second, but I just want to ask really quickly on the day, how much do you think, any broader federal society, you just have it? Like, how much do you think the day is the federal society kind of Wranglers at any point? I mean, we know that Leonard Leo, we know that like, you know, and Don Again, like have like had a hand in helping hands electing kind of a lot of the judges in the

first Trump administration. It's not clear to me that this is fed that like a lot of this attack on

the on the district court is driven by a fed sock mandate, um, necessarily, but I don't know. And I don't know if that's something that you say in the forward or you supposition or that you even have

“is like a, and I, and I, and so it could just be just leave it an open question. But I, I think that, like,”

kind of one of the things that is interesting about this is the breakdown between the Trump administration and, and the federal society over the last, um, two years, um, and how, how pronounced that is, and like, what that says about kind of the departure from the rule of law, even so that it's something that this is, that the federal society can divide by, um, to such a degree. Uh, so, um, so I mean, there's, there's a lot, there's a lot to say there. I mean, I guess I'll just say,

I think a lot of this is coming out of the White House. I think a lot of this is coming from Steven Miller.

Yeah, I know who has, you know, who has never met an institutional principle that he took seriously.

And, you know, for whom it's all transactional and, and, and it's all sort of just means to an end. And I think a lot of this is, you know, institutions that historically would have done a better job than ignoring someone like Steven Miller, um, who are now cow-calling to him because of the influence he,

“you know, if you wields through the president. Um, you know, the fedsaw point, I think is really”

interesting because I really do think there is a split, um, like a schism on the right, but we in the folks who actually do see and do understand that what's happening right now is dangerous, and is deeply unprecedented, and is a real threat to the rule of law and the folks who either don't see it or won't say it. Um, and, you know, Kate, I think that distinction's reflected on the bench. I think you have, you know, some Republican appointed judges who have been very much in the,

this is a very serious threat to the rule of law category. I think you've had some Republican appointed who haven't been. And I think that's, you know, that's the same scism we're seeing. I think in the broader right-wing academic community and the federal society, et cetera, where it's like, you know, principles versus Trump. No, no. It's completely true. Yeah. I think that that's exactly right. Now, we said the Boseburg was a great foil, but I also think that you kind of highlight in the

forward, uh, Kavanaugh's Kassa concurrence, like, has a lot of weight in your piece, and I think for good reason. And so I was kind of want to let you kind of talk about this a little bit. You kind of call it the perfect foil for your thesis. Um, and, uh, I mean, frankly, there's a lot of moments at various at various times in the last two years that are great foil to your thesis, which is why the whole thing kind of holds together. So, well, um, but there is, uh, but you are, but he argues that the

court should be providing, quote, a nationally uniform interim answers, and essentially making the case for what you call a nine justice district court. Um, and so, uh, you find out that the cast majority itself isn't delivering the uniform answer on this. It kind of just erased the three district court rulings that it had, but kind of walk listeners through that story about what you meant by a nine justice district court. What was significant about this cast a ruling, which I also think is like a

very significant, uh, departure. And it was a, who knows? I don't know if I'm surprised by anything anymore, but I was a little shocked by the cabin often currents in this. So, I mean, you know, love them or hate them. Justice Cavana has a remarkable tendency to say the quiet part out loud. Um,

on the same page, right? So, Casa was the decision last June in which the six three Republican versus Democratic, you know, Justice Majority, um, held that in general federal district court's can't issue universal injunction. That is to say they cannot issue an injunction that protects non-played discs. Um, you know, the fifth circuit is now trying to say it can do it in the other

direction. Um, what is really remarkable about Cavana's concurrence is that he basically says two things

okay, in the name of trying to defend all of the court's interventions last spring on the emergency document, right, which no one else is doing. Like Cavana, again, to his credit, he's trying publicly to defend what the court is doing, which no one else is doing. Um, and he says first, he says,

“listen, you know, new big federal policy, you should not have to be held in limbo, like we should”

provide interim answers that are nationally uniform, right? And second, District Court shouldn't, okay, so those are the two steps, right? Step one, like someone should do it and step two, it should be us not in the district courts, right? Um, as a normative theory, right, as a blue sky, like institutional design idea, it's a fascinating one. Um, it's a little bit lawless in that it

doesn't account for all of the statutory constraints on the Supreme Court that's supposed to

matter in these cases. But Kate, the real irony is in a case in which the Supreme Court is undermining the ability of lower courts to provide exactly the same thing, a nationally uniform interim answer, Cavana doesn't either. Um, right, that's why it's such a perfect foil, because like, listen, Supreme Court, if you're going to step in the shoes of district courts, if you're going to arrogant the role of district courts, fine, you got to play that fucking role. And what's

so, yeah, impressive about Costa is Cavana says, only we can play this role, and oh, by the way, we're not going to do it here. I guess I also want to be super clear if I listen. I was like,

“I think that people are sophisticated enough, this he's, but the district court is the fact driving”

courts. This is not the role that the, that the, that the, the Supreme Court should be stepping in on. Nor, nor does Cavana want this future. And what's there? No, like, this is no one wants there to be a nine justice district court. No one has time for that shit. Take bearer, wait, Taylor, are you, are you, are you sure Cavana doesn't want that future? I mean, I, I, I don't, eight, eight of nine justices may not want that future. I, I, like, I mean, but this is the problem

case, right, which is they don't, like, they're not, they don't feel bound by factual findings, by district courts. Look, look, you know, I actually think one of the real, like, illiterate absolutely perverse to me. How, like, how, how, how, how completely, like the, like, the, like, the standards of review seem to have just, like, disintegrated. Like, so standards of review are basic things in which there are rules around, like, what parts of an appeal, a certain

a certain court has jurisdiction to, like, look at and critique and criticize. And traditionally, you cannot have appeals courts unless there has been major error, like, be reviewing factual factual parts of, like, a trial court's, like, determinations, because they sat in judgment of the facts. They sat in the, those, those, those guys had to sit through three weeks of trial and listening to witnesses and they made it in the judication on all of the facts. And that's usually not how

people are reviewing the record at the appellate level. You're looking for errors in law. You're not looking for errors in fact. So I'm just like, trying to say, like, there are these standards or review that are part of the law that, like, just, like, they're not even in the decisions. There's not even, like, I'm not even, like, seeing it, like, mentioned in Supreme Court, like, whatever. But that's, like, neither here nor there.

I mean, I mean, I think it's, I think it's here and there because, I mean, like, so, so I think a really good example of this is the Texas Redifference in Case, which, right, not one of the, not one of the biggest headlines from the term. But I actually think it's perfectly emblematic of the problem. So there you had, you know, the special three judge district court, the special little record that he's here, he's kinds of redistricting cases. Kate have, like, major major, you know,

evidentiary hearings and fact findings. You have this, like, 180 page opinion by a Trump appointed district judge that makes all kinds of findings about how, you know, Texas was basically really trying to do this based, at least something really on race. And the Supreme Court just stays that decision

in a five paragraph order that never says the district court's fact finding was wrong. Or even worse,

was clearly a roadiest, which is the standard they're supposed to follow. It just pretends that

“they're not bound by it at all. And so that's why I think this was the right forward to write”

about the October 2025 term, a Supreme Court, you know, it would be bad enough Kate if the court

doing whatever it wants. It is making it harder for district courts to do what they must. And I think that's the, that's the zeitgeist that the four is trying to capture. Yeah, no. And I do think that,

like, it doesn't incredible a job. See, we have about only about ten minutes left. And I just

“kind of want to give you a chance to kind of, to look before or looking. As I think the, the forward”

kind of, yeah, I know exactly. The, you have a pretty concrete, and I thought pretty reasonable reform menu kind of that you lay out in the piece. You call for three judge district courts, random nationwide case assignment. That is interesting and how that would work. I'm kind of, you know, a Washington venue default. The judicial conference is guidance. I totally agree with that one. I'm, I'm interested kind of prepare for proposals to actually restore district courts power.

You know, relaxing, qualifying immunity or kind of codifying things like that. And so you describe like the Congress is paralyzed. And I want to talk about that in my very last question. But are you expecting any of this to move? Are you hopeful? If you could like snap your fingers and pick two of these things, what would you pick? Well, that last part. I was ready, but I was good

to the last question. I know it. You don't have to answer that. I just always kind of want to be like,

“what do you really care about? But like I, but I think that like generally speaking, like,”

are you hopeful coming out of this forward that like, people are going to be listening? Do you think that this is, you know, I do think you kind of framed it very well that Frankfort used to write about kind of the business of the court. I feel like this is a hard coming back to the early days of like what this forward was for. And it is not this like nasal giving gazing retrospective on like kind of like where the rule of law, like where the law as such has had it or even the

unitary executive or anything. It is a much more institutional look at everything that's happening. I kind of feel like it maybe has more ability to make change because of that. Right? And so I wonder if you're similar, it's similarly hopeful. So I mean, I think it's okay. I am, I am eternally optimistic. I'm a meds fan. I have to be, right? The tough way to make it disagree. But that's fine. I'm hopeful in one very important sense, which is that I do think court reform is now in the water

in a way that it has not been in my professional career. Even, you know, four years of or five years ago, when President Biden stood up the, you know, presidential commission on Supreme Court

reform that was designed to never actually accomplish anything. And yeah, it was really to put the

point into the how that didn't accomplish anything. But that was the goal. I mean, the goal was to spearhead from having to take a position during the 2020 election, which it succeeded. So, you know,

“I did court reforms now in the water in a way that's very serious. And that's why I think it's”

important to have a meaningful conversation about what that reform should look like. And so, you know, there's a remarkable piece in the Virginia Law Review from last year by a junior professor at Elton Garret West called Timming the Shadow Docket, where West tries to pitch the rise of the Supreme Court's emergency docket as a response to it being way too easy to sue the government. And that the real way to sort of relax on the shadow docket is to make it much harder to sue the federal

government. And I have the exact opposite view, which is in his way too hard to sue the federal government. You cannot sue federal officers for damages for constitutional violations. I lost one of those cases five to four in the Supreme Court, right? And so, I want court reform to not just be about Supreme Court reform. I want court reform to be about accountability reform, how can we reform the relationship between the federal courts as an institution and the other branches of

government? And so, understand that that relationship sometimes can't live in the interstices of doctrines like Bivins or the Tucker Act or universal injunctions. I think it's actually a really important step. Empowering district courts without empowering hand-picked district judges, right, is also an important step. Like, I don't, I don't want to give parties the power to hand-picked a single judge and have them shut down nationwide policy, but I do want the federal district courts

in general to be able to do that, right? And so, the real sort of cash out of the forward is, we should be empowering the district court's plural, right? While making it harder for litigants to abuse which district judges they actually appear before. And that would not be that hard to do. I don't think it ought to be especially politically controversial, but I think it would have to be

two and a half years away from having. Yeah, no, it'll be super interesting. And so, I kind of just wanted to say this like you end by putting the burden back on the court itself, saying that it could do quite a lot just kind of by taking a moment to consider all of the litigation it doesn't see.

“And I think that like, what would that actually look like in practice is kind of like my answer? Like what?”

I mean, all of these judges, well, that all of them, I shouldn't say, so, Kagan, for example,

never judged before, or a justice before, or before she was a justice. But they're not,

obviously, not new to the system. They know that these cases exist below them. And what is going on here that there isn't kind of looking at this practice or is it, are you basically not talking to like kind of the liberal dustices in the sense that they're not like looking at this in self-correction? If you had five minutes, I guess, essentially, with Roberts, what would it be that you said to him? If you could, if you could be nice.

I would say, Mr. Chief Justice, you are not the Chief Justice of the Supreme Court, you are the Chief Justice of the United States. That is a deliberate titled? It is a habit, title. That exists to instill in that office holder, the responsibility to

“supervise the entire federal judiciary. And I think the court is just too damn cloistered.”

Like, I don't, I don't, you know, the justice is go to the circuit judicial conferences. But they show up, they make some fairly can remarks, and they leave. Like, they don't actually, you know, talk to judges behind the scenes. They don't go to like work in breakfast and work in lunches, right? You know, Bose, but I mean, the only time that we know that like the Chief was confronted by lower court judges was when Boseburg in that March 2025 judicial conference meeting, right?

Said, hey, Chief, my colleagues are concerned that they've ministered. Like, so the promises that the justice is are insulated from the reality, they don't see what district judges are facing, right? They don't actually have any feel for the volume. They're docked smaller today, then it has been at any point since the Civil War. And I think it's, you know, part of why I wanted to write this forward was because I really wanted to at least put it out there that the Supreme Court

is living in a bubble. And as problematic as it is in the abstract, it's even worse when from inside the bubble. You are affecting the outside of the bubble in ways that either you don't

“intend or even worse that you do. And, you know, that's, that's the reality that I think is”

descriptively unassailable. But persuading the justice that's a problem and that they should care, I think is the really hard piece of this. Yeah, I think that that's really right. And I will just say that like at some point, I just was talking to Nicholas Dagley, who's a professor at Michigan, and who has a book coming out. I think probably around the same time that you're forward,

actually it's published in the larvae. There's always such a long leg on this. But he makes this

really interesting case that I, like that basically, like this giving up on the courts is part of like what we need to do to move forward, which I think is your exact, many regards like your exact opposite kind of impulse. But I think the U.S. come from like the same good place of trying to kind of reform this system, be interesting to how do you guys kind of come on and talk together. Not just, so not just Nick, there's also this book coming out next month from Niko Booi and

Dafton. Oh, no. Great. Yeah, and Dafton. Great. Hey, cool. But like, there is a move. So this is, this is probably a good place to tie this all back, back together, right? Yeah. There is a move of foot, especially among progressive academics, to suggest that the way out of this is to weaken the courts. Yeah. And I want to sort of die on the hill that the district courts behavior over the last 18 months is all of the evidence we should need about why that's disastrous.

And, you know, where would a Brago Garcia be today without powerful district judges, right? Where would, you know, the law firms that were talking about, where would they be, right, without like John Beats in the DC district court blocking the executive order, targeting the law firms, right? Like, you know, we are not set up in our current political system. To live in a world in which the federal judiciary in general has no power to stand up to the

executive branch. The answer is to make the federal judiciary more accountable and more protected,

right, and not to destroy it. And I think that's going to be, as we turn toward court reform, that's going to be the real fight. Is how do you persuade folks that the real way out of this is not to burn down the courts, but is actually to restore the, you know, institutional relationships that used to exist, right? Both horizontally between the court and the branches and

wrapping it up. I hope that like, I mean, I think that's a nice preview for hopefully,

at the very least, our next discussion. Because I do think this is like that's going to be like a

“huge, I think that that's going to be a huge thing on and hopefully after the midterms,”

it'll be something that starts getting discussed. And so this is going to be soon rather than later, I think that is the kind of the future of court reform. And I really hope that I think that like the data, the way that you make this argument, Steve, I think this is going to be a really impactful piece

“congratulations on writing in. I'm so, you know, I couldn't have picked a better person. I would have”

like if they'd asked me out, it'd have been like Steve Latic for the first five names. So this is

this is great to read and it was great to it. It was just like a super interesting, well, argued thesis and yeah, everyone go check it out on SSRN, but it'll also be up in the Harvard Law Review website in November. Thank you so much, Steve. That's good.

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