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The Lawfare Podcast
Lawfare Daily: The Court Against the Courts with Steve Vladeck and Kate Klonick
01:00:24
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- [00:00]
Kate Clonick
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- [00:26]
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- [01:08]
Steve Ladig
You have the Supreme Court 1 issuing these days 2 changing the rules for what district courts can do while Kate 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
- [01:23]
Kate Clonick
judges, it's the lawfare podcast and lawfare Live on Substack. I'm Kate Clonick, senior editor of lawfare with Steve Ladig, professor, Georgetown Law, author of the incredibly prolific Substack One first and the New York Times bestselling book the Shadow Docket.
- [01:41]
Steve Ladig
It's not a push to undermine Boasberg as such or Boardman as such, or, you know, Judge Suknan 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.
- [02:05]
Kate Clonick
Today we're here to talk about his new piece, 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 subset, Clive, I stumbled across this phrasing the courts versus the court, and you, 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 Supreme Court Forward with that exact title, which I have now read 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 like it's its own institution within legal academia. It's like, yeah, it really is. It's like 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. Legal publishing has been going through a lot of changes lately. The 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 this avenue to influence for the court and the courts when there was a question of first like review or things like that, they would take in the ideas of scholars. You know, that happens around the edges here and there, but it certainly has kind of lost that to a certain extent. That type of like seen 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 stretched 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 the. 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.
- [04:09]
Steve Ladig
Yeah, I mean, it's been really cool. So I guess let me do two minutes on just sort of the history because I think that'll put it in the context for folks who aren't like law professor nerds. So before, like in the 1920s, 20s and 1930s, there was this fairly well known Harvard law professor named Felix Frankfurter who wrote a series of larvae articles under the title the Business of the Supreme Court. And Frankfurter together with sort of a shifting series of students, engineer colleagues. But I think James Landis was the most frequent contributor, basically. Kate, every year, right, he published an article that was like, hey, here's this year's like meta take on the Supreme Court. And you know, Frankfurter was very transparent in each 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 Court's caseload, like all, you know, all the nerdy stuff that, like, institutionals like me, I think have always cared about more. So Frankfurter carries that project through all the way through the 1930s until he ends up on the Supreme Court when he can't really do it anymore. And then Henry Hart tried to pick it up for a couple of years, but then Hart went into the government during World War II, and so it sort of falls by the wayside 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, becomes the. The first issue every year of the Harvard Law Review, and it 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, which was meant, Kate, as like a classic, like, two, three, five page forward.
- [06:08]
Kate Clonick
Like, yeah, yours was a little longer than that.
- [06:11]
Steve Ladig
So there's a change. But like, so, right. So Louis Jaffe wrote the first forward. It was basically like a summary of everything else that was coming as time has gone on, just to sort of bring the story quickly from 1949 to the present. The foreword has become like the lead article in the Supreme Court issue. 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. And, you know, every year, the editors of the Harvard Law Review invite somebody to write the next year's forward. And so this year that fell to me. You know, I didn't ask them how many people said no first. I was probably like, the 41st person on the list.
- [06:51]
Kate Clonick
Yeah, right. You don't really say no to the Harvard Forward. Steve's being humble. But anyways, yes, go ahead.
- [06:57]
Steve Ladig
But it was a but. No but. So. But you're, you know, in trying to figure out, like, what the topic should be, I really, like, struggled with this because there's so many different things to say about the current Supreme Court. And, you know, you can only write. I mean, they really do have a limit of 40,000 words, which I might have gone right up to. But. And so what I really wanted to do, Kate, is I wanted to try to do two things in the forward. The first was to, like, honor the, like, Frankfurter Hart tradition of not just writing about the big cases. Right. Of. Of not just writing a doctrinal piece about, like, the unitary executive theory after slaughter, or the voting rights act after Calais. 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. And that's where 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 increasing gap between the justices and district judges. And that, Kate, some of that gap is because I don't think the justices fully appreciate how bad things are for district judges today. And so I really wanted to write a piece that both, 1, told the descriptive story of just how insane life is in many federal district courts today, and then two, try to sort of ask and answer the question of how much the Supreme Court is responsible 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.
- [08:49]
Kate Clonick
Yeah, no, and it comes across as that. And it's incredibly, in my view, an incredibly sociologically important piece as an institutionalist, because it gives this kind of sociological and institutional description that I don't think ever gets surfaces in any decisions. It gets surfaced in news reports. And I'm sure that there are things that piecemeal come through to the court. 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 forward. 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. So 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, you said the story of the supreme court since early 2025 is in the main, a story about the court against the courts. And so I love that framing, obviously, it's one that came very naturally to me. But unpack that for listeners. It's not just that 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.
- [10:26]
Steve Ladig
I mean, I, I, I hope, I hope that's true. Like, I'm glad to hear that because that's what I was going for. Yes, I, 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 descriptive 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 dockets are. 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 1st of last year, it's had 450 proof. Right. Like multiply that by 93 district courts. Right.
- [11:24]
Kate Clonick
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 and always had this problem. But, but these are wild numbers for federal courts. Great.
- [11:37]
Steve Ladig
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, 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 things. One is the court, in some cases, openly criticizing district courts. So Justice Gorsuch wrote this really tendentious 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 are also these doctrinal moves the court has made to make district courts lives harder, right, by cabining universal injunctions in CASA last June, by foreclosing nationwide Administrative 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 courts 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, $5 million or $500 million 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, issuing these days, two, changing the rules for what district courts can do while Kate, 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 gives you too hard a 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 Boasberg should be impeached, Roberts gave a statement to the media where he 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, quote, these attacks have to stop, unquote, without refer, 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 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 the justices bear some responsibility for pouring gasoline on those fires.
- [14:59]
Kate Clonick
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 gotten on it, because as we were kind of talking, chatting before the show, I was like, no, I think it's really well argued. I mean, there's other problems as, like an institutionalist and 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, you lay out a pretty compelling case here just on the facts. And so, like, what are, 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 courts, that there is this type of dichotomy that has. 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 counterargument to some of these things?
- [15:59]
Steve Ladig
So I think the counterargument 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, you know, 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. Right. When, you know, the lower court's got stuff wrong. But, you know, I guess I'll just say, like, that's an interesting point, given how little of the piece is 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 during the Trump administration. Right. Have been aggressive. I mean, and, you know, there's just no. No ifs, ands, or buts 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 is 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. Is the. Is the critique I've heard. Well, I do think. And then I have to do more to sort of defend that.
- [17:18]
Kate Clonick
Well, I was going to say that, like, there's not more to defend. I think that most of what you end up kind of showing and this. Not to, like, not to make your argument for you, but what you. Most of. What I would say to someone was, 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 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 or anything like that, or the number of, like, appeals heels 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, the relationship, I would say, between the courts and the court.
- [18:13]
Steve Ladig
I think that's right, Kate, 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. I mean, part of why I find these critiques frustrating is because they're actually, like, why I wrote the piece the way I did.
- [18:26]
Kate Clonick
It's very, very balanced.
- [18:28]
Steve Ladig
No, no, but like, 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 wing law people are still talking publicly. And, you know, Judge Bur. This is a good example of something that happened this week. So Judge Burroughs issued like a, an administrative stay in the Somalia TPS case. Judge Burroughs is a district judge in Boston. And you have the Solicitor General of Iowa publicly, like, you know, going after her. 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, there 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 all for outliers.
- [19:46]
Kate Clonick
Right.
- [19:47]
Steve Ladig
But don't let the sort of. The outliers come to define the rest of the field.
- [19:51]
Kate Clonick
Yeah. Speaking of outliers, one of the things that I anecdotally have noticed is just the sheer rise in kind of what I would call not super legal district court opinions.
- [20:05]
Steve Ladig
And what I mean by that is some rhetoric.
- [20:08]
Kate Clonick
Rhetoric, yes, exactly. That it's not that they're illegal, it's that they are not based in legal realism or 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 mind from like Judge Daugherty and like the. In the case of Murthy v. Missouri. And I wrote like an entire like New York Times op ed about this because it was such an unhinged opinion, but it was a 90 pages citing to Orwell. It's like, since when is Orwell like. Or even. And even the Constitution, like the Constitution, the Declaration of Independence is not like a binding authority in any way. Like all of these types of references. And I'm just like, this isn't even. This is just dick. 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 Doherty, 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. And like he had like on remand. Oh yeah, this is my mug of Daphne Keller testifying in Congress about Murthy 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 took 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 thing which is like, you know, which to your point is like, is kind of crazy and signals like this type of, this type of moment. But like I just feel there's been this. I don't like that people are like, what an o. 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 you agree with, you should not agree with, like the fact that the form 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.
- [22:26]
Steve Ladig
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. And the most effective legal writing is, is writing that shows without telling. Right. Like that, that persuades the reader without saying, I am persuaded in you. And so, you know, I worry a bit about the turn in judicial opinions, Kate, which I date till, I think, maybe the last book decade.
- [23:00]
Kate Clonick
Yeah, there's more of it for sure.
- [23:03]
Steve Ladig
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 going to show up. And, and so I think that 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, withstanding attacks they never had to withstand before, trying to make sure that people actually know how bad it is. And they don't have a lot of outlets besides their decisions. Right. They're not going to go give press conferences, they're not going to go on, you know, TV shows, they're not going to go on, you know, Lawfare Live. And so, you know, I think part of what's going on is that the judges are trying to draw attention not to themselves, 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 undermines its own credibility. Right. While writing opinions that are going to 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 4:30 on a Friday afternoon, you'll get three of them in quick succession and they're each like a hundred pages long.
- [24:57]
Kate Clonick
Yeah. I have like, been. I have like, my heart has stopped it sometimes at like the amount of like, of like work that you have had to do to keep up with all of this stuff, it is unbelievable.
- [25:08]
Steve Ladig
But, but so this is all just a way of saying that, like, I don't blame judges for trying to draw attention to conduct that they believe is outrageous. I think the key is just that, like, I think there's. Let me just take two examples. I think there's a really big difference between Judge Beary's five page Bible passage, Laden Habeas Grant in the case of the five year old from Minnesota. Right. Which wasn't really a judicial opinion at all. And Judge Reyes is like 83 page, you know, Haiti TPS ruling where the only pictures she used were screenshots of the government's own tweets. Right. And like, and, and the rhetoric that she relied upon was the government's rhetoric. Right. And so, 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 folks 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 are in D.C. boston, and maybe Maryland, maybe Greenbelt, Minnesota. Well, so, right. So that, what, that, that wipes off the map all 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 case of it in Texas. Like so, you know, yes, like this, some of this is forum shopping toward judges who folks think might be ideologically 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 handpicked 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.
- [27:04]
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- [27:05]
Kate Clonick
Yeah. So kind of on that note, let's talk about Trump versus JGG and the DHS versus DVD cases, cases where the government kind of had overtly 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. 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 view, kind of what, what district courts are reacting to? Because when you say that, like they've never seen this behavior before. I think that they're really the, the lack of preparedness on behalf of the government, but also this like, sheared, like, kind of nervy, nerviness, I guess, is like, for lack of, like a better term, like the, the lack of respect that really guides like so much of the court. Like, it is one thing to talk about the courts and be outside 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, I'm like the opposite of a formal person. And I find a calmness in kind of the rigor and like, kind of the, the, the civility and the, and the normative, like kind of rote, this is how we behave type of behavior that like, happens in courts. And I'm like, you know, such a rebel at heart. You know, I never, you know, shaved half my head while I was clerking and would flip it over when I'd go back into court. But like, that was like, you know, but I flipped it over because I didn't want to be disrespectful, you know, like, it was like that type of thing. So I just really like what's going. Like, the fact that they're defying orders is mind boggling. Also, Boasberg has just gotten so. Judge Boasberg has just taken like fire hose 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, of scrutiny.
- [29:09]
Steve Ladig
Well, I mean, he's become, I think, a foil, right, for a lot of it. By the way, my, my rebellion during my clerkship was wearing jeans. So, you know, we all, we all rebel in different ways. You know, I, I love the idea of using Bozberg as a foil because I think, I think it illustrates a lot. So Jeb Boasberg is the chief judge of the D.C. district Court, which has been, for obvious reasons, ground zero 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 D.C. which of course the crazy people on the right say, see their forum shopping. I'm like, they're suing the federal government.
- [29:49]
Kate Clonick
That's where you do it. It's where you.
- [29:54]
Steve Ladig
But so, so Boasberg, you know, got his fair share. By the way, Senator Schmidt tried to Argue it wasn't his fair share by confusing the D.C. district Court with the D.C. superior Court.
- [30:04]
Kate Clonick
So I just want to say Boseberg w appointee, head of the FISA court, one of the most secretive, kind of national security compliant like courts that ever was. I mean, former prosecutor.
- [30:16]
Steve Ladig
Not.
- [30:16]
Kate Clonick
If you could rate Boozberg on a scale. I'm not. I'm just gonna say as you could rate Boasberg on a scale from 1 to 10 of like conservative leaning, I would have put him at a solid eight and a half. Nine. Like no. I mean, maybe, but maybe. I mean, I'm not in the federal courts. 5. Really?
- [30:36]
Steve Ladig
So listen, I mean there's, there's a whole universe of democratic appointment 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 ranks with public defenders. And Boseberg's one, he's a classic former prosecutor turned judge.
- [31:00]
Kate Clonick
Oh, yes, but he is. But I would also say that like from just substantially from his days in the FISA court, like that is like that puts you, that puts you a little bit in kind of in a valent. That. I'm sorry, that puts you in a valence that is a pro government balance. And as 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, you wouldn't have ever put him in the pocket of going against the government and administration is like, that's not where this man was coming from, I guess is like that's not what you would have said about him.
- [31:37]
Steve Ladig
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 oath, is to require lawyers to file things under penalty of professional misconduct charges. You know why, Kate? Why are all of these baloney prosecutions collapsing? Right? As soon as they reach any scrutiny in the federal courts? It's because the judges are looking at these indictments and they're saying, are you fracking kidding me? Right? So Boasberg 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.
- [32:27]
Kate Clonick
And, and this one errors Rovini, like stepped down over and whistleblow on now 3rd Circuit Justice Beauvais, you know, about kind of like how he was instructed to basically stand up and blast live.
- [32:44]
Steve Ladig
And Blanche.
- [32:45]
Kate Clonick
Yes, and Blanche. Yes.
- [32:46]
Steve Ladig
So, so, but, so, so, but, so what's really what I think folks don't remember about this case is that the only reason why Boasberg had a chance to rule at all in a way that was then defied is because the ACLU caught wind at like 11pm on a Friday night that the government was about to sort of, you know, remove all these folks out of the country and then announce what they were doing. Like. Right, right. And so, so, like this was all a sneaky operation to begin with. Right. And Boasberg says, you know, slow down, everybody. Right. Like, let's, 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 me even though I think what, there were two planes in the air. And Boasberg says on the record in the hearing, I want you to turn the planes around. Yeah, 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, oh, my God,
- [33:49]
Kate Clonick
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 could, I don't know if I could have that come out of my mouth to a judge.
- [34:06]
Ben Wittes
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- [39:14]
Kate Clonick
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- [41:28]
Steve Ladig
But so the, so the real problem though here is that you know, so Bozberg 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 Enemies act since. Right? And so like well not only that,
- [41:44]
Kate Clonick
but you had like. I don't know if you remember this, but I clerked with her so I remember this. But Judge Sparkle Sukanan like was on the emergency response for I can't even remember which case it was at the time, but another immigration case. And she literally was like I'm here at like we, we don't have office, 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 precedential moment. It was a wake up call for the, for judges that like they were, they were running up against this. It lost trust between the government and the, and the courts all over the country.
- [42:29]
Steve Ladig
Like it just completely lost trust. And my, my favorite example of this is what happened in Maryland. So I, you know this has probably gotten memory hold because there's just too much to keep 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 habeas petition, we are automatically staying their removal for I think it was 72 hours. I might have the timing not quite right. Right. Which was like only made necessary because of the Number of times the government had removed people while they had habeas petitions pending. Right. And so you have a district court saying we're going to stop this by staying everyone's removal. And Kate, you probably remember this, the Justice Department sued the district court. Like there is a lawsuit out there right now called the United States versus Russell where you know, the, the, the, the. How dare you district court issue an order stopping us from violating your orders. Like that was basically the claim.
- [43:32]
Kate Clonick
It's crazy times, Steve. It's crazy times.
- [43:37]
Steve Ladig
So to come back to Bozemerg for a second. So the reason why I think Bozberg is such an interesting foil is because JGG was this vis. The case goes to the Supreme Court on an emergency application. Right. You get a 5, 4 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 habeas petitions as opposed to one nationwide APA action. But meanwhile, right. You have the government getting emergency relief in a context in which it had unclean hands. And Justice Sotomayor made this point expressly in her dissent. She says by giving the government relief, here we are, 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.
- [44:25]
Kate Clonick
So.
- [44:25]
Steve Ladig
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 Boasberg. Right. It starts as a sort of argument about the JGG case. They realize, I think pretty quickly that that's so transparently beloved here.
- [44:52]
Kate Clonick
I want to actually just pause for a second. 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?
- [45:03]
Steve Ladig
No, I mean, I think, I think there's no question that there is coordinate. 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 Boasberg and Maryland 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 push is to delegitimize federal district courts. Right. It's not a. It's not a push to undermine Boasberg as such or Boardman as such, or, you know, Judge Sufnan 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?
- [46:18]
Kate Clonick
How many?
- [46:19]
Steve Ladig
Zero.
- [46:20]
Kate Clonick
Really?
- [46:21]
Steve Ladig
Yes. Yes. Because what a shocker.
- [46:25]
Kate Clonick
Because it's not something that normally happens. Ever happens. It's not a thing that you do.
- [46:31]
Steve Ladig
Even though there was plenty of sharp criticism directed toward district judges like Matthew Kesmarick or Drew Tipton or your buddy Terry Dowdy. Right.
- [46:42]
Kate Clonick
Like, there are my name wrong.
- [46:44]
Steve Ladig
I think it's Dowdy, but.
- [46:45]
Kate Clonick
Oh, okay. I just like, God, yeah, but whoever this is, the judge that I was saying his name is Doherty before, who knows? Whatever.
- [46:55]
Steve Ladig
But, like, the point like 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 writ large. And this is so back to, you know, you asked me before about the criticisms I'm getting. Like, some folks have said, well, aren't you the guy who was so critical of Matthew Kaczmarek? Right. This is my. Me and Edith Jones. The fun we had at the 2024 Federal Society Convention. And like, yes, I was very critical of Cashmere. You can criticize individual judges. What you should not be doing is undermining the integrity of the federal judiciary. And I think we've crossed that line over and over and over and over again. I mean, it's like from friends. The line is so far behind us. The line is a dot to us at this point. And the Supreme Court is helping. Like, the Supreme Court is not like, hey, let's go back to the line. This report's like, oh, let's help. Let's. Let's push you further away. Like, that's. That's really the animating point of the forward.
- [47:51]
Kate Clonick
Yeah, no, I think that, that. And I want to get to. I'm going to get to Casa in, like, one second. But I just want to ask really quickly on the day, how much do you think and you brought up federal society just now, but like how much do you think the day is the Federalist Society kind of wranglers at any point? I mean we know the Leonard Leo, we know that like you know, and Don McGann like have like had a hand in helping hand selecting 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 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 as like a and I and I. So it could just, we could just leave it an open question. But I think that like kind of one of the things that is interesting about this is the breakdown between the Trump administration and the Federalist Society over the last two years and how pronounced that is and what that says about kind of the departure from the rule of law, even so that it's something that the Federalist Society can't abide by to such a degree.
- [48:58]
Steve Ladig
So there's a lot to say there. 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 Stephen Miller.
- [49:07]
Kate Clonick
Yeah, I know who has, you know,
- [49:09]
Steve Ladig
who has never met an institutional principle that he took seriously and you know, for whom it's all transactional 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 of ignoring someone like Stephen Miller who are now kowtowing to him because of the influence he, you know, he wields to the president. You know, the Fed sock point I think is really interesting because I really do think there is a split like a schism on the right between 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. And you know, Kate, I think that distinction is 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 had some Republican appointed who haven't been and I think that's, you know, that's the same schism we're seeing, I think in the in the broader right wing academic community, in the federal society, et cetera, where it's like, you know, principles versus Trump.
- [50:28]
Kate Clonick
No, no, it's completely true. Yeah, I think that that's exactly right. Now, we said the Bozberg was a great foil, but I also think that you kind of highlight in the foreword, Kavanaugh's Casa concurrence, like, has a lot of weight in your piece, and I think for good reason. And so I just 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. And I mean, frankly, there's a lot of moments at various, at various theaters, times in the last two years that are great foils for your thesis, which is why the whole thing kind of holds together so well. But there is. But you argue. 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. And so you point 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 walked listeners through that story about what you meant by a nine justice district court. What was significant about this Castle ruling, which I also think is like a very significant departure and was a. Who knows? I don't know if I'm surprised by anything anymore, but I was a little shocked by the Kavanaugh concurrence in this.
- [51:45]
Steve Ladig
So, I mean, you know, love him or hate him, Justice Kavanaugh has a remarkable tendency to say the quiet part out loud. And. And you know, as an academic, that can be useful just to remind. So just for. So everyone's on the same page, right? So Casa was the decision last June in which the 6, 3 Republican versus Democratic, you know, justice majority held that in general, federal district courts can't issue universal injunction. That is to say, they cannot issue an injunction that protects non plaintiffs, Even though the 5th Circuit is now trying to say it can do it in the other direction. What is really remarkable about Kavanaugh's concurrence is that he basically says two things, Kate, in the name of trying to defend all of the court's interventions last spring on the emergency docket. Right. Which no one else is doing. Like Kavanaugh, again, to his credit, he's trying publicly to defend what the court is doing, which no one else is doing. And he says, first, he says, listen, new big federal policies should not have to be held in limbo. We should provide Interim answers that are national uniform. Right. And second, district courts 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 the district courts. Right. As a normative theory. Right. As a blue sky, like, institutional design idea, it's a fascinating one. 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, Kavanaugh doesn't either. 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 arrogate the role of district courts, fine. You got to play that fucking role, right? And what's so impressive about CASA is Kavanaugh says only we can play this role. And, oh, by the way, we're not going to do it here.
- [53:56]
Kate Clonick
I just also want to be super clear for listeners. Like, I think that people are sophisticated enough that this needs to. But like, the district court is the fact finding courts. This is not the role that the, that the Supreme Court should be stepping in on, nor. Nor does Kavanaugh want this future in which they're like, this is. No one wants there to be a nine justice district court. No one has time for that shit. They barely.
- [54:18]
Steve Ladig
Are you. Are you sure Kavanaugh doesn't want that future? I mean, I don't know. Eight of the nine justices may not want that future. I like, I mean, but this is the problem, Kate, right? Which is they don't, like, they're not. They don't feel bound by factual findings by district. Look at. You know, I actually think one of the real, like, it is absolutely bonkers
- [54:39]
Kate Clonick
to me how, like, 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 and they, those. Those guys had to sit through three weeks of trial and listening to witnesses and they made an Adjudication 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.
- [55:48]
Steve Ladig
I mean. Well no, I mean I think it's, I think it is here and there because I mean like so, so I think a really good example of this is the Texas redistricting case totally. Which right. Not, not one of the head, not one of the biggest headlines from the term but I actually think is perfectly emblematic of the problem. So there you had, you know, the special three jud court, the special lower court that here, these 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 some degree 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 erroneous, 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 was just doing whatever it wanted, whenever it wanted. But it is doing more than that. It is not just 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 board is trying to capture.
- [57:09]
Kate Clonick
Yeah, no, and I do think that like it does an incredible job. Steve, we have about, only about 10 minutes left and I just kind of want to give you a chance to kind of, to be forward looking as I think 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's Guidance. I totally agree with that one. I'm. I'm interested. Kind of prepared with proposals to actually restore district court's power, you know, relaxing qualified immunity or kind of codifying things like Bidens. Okay, so you describe, like, the Congress is paralyzed, and I want to talk about that as 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?
- [58:16]
Steve Ladig
Well, that last part I was ready for. I was good till the last question.
- [58:19]
Kate Clonick
I know, I know. You don't have to answer that. I just always kind of want to be like, what do you really care about? But, like. 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. I do think you kind of framed it very well that Frankfurt used to write about kind of the business of the court. I feel like this is a hearkening 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 is headed, or even the unitary executive 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, similarly hopeful.
- [59:08]
Steve Ladig
So I'm. I mean, I think, because, you know, Kate, I am. I am eternally optimistic. I'm a Mets fan. I have to be. Right. Wait till next time disagree.
- [59:19]
Kate Clonick
But that's fine.
- [59:22]
Steve Ladig
I'm. 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 ago 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.
- [59:42]
Kate Clonick
And I was really disappointed at how that didn't accomplish anything, but whatever.
- [59:47]
Steve Ladig
But that was the goal. I mean, the goal was to spare him from having to take a position during the 2020 election, which it succeeded. So, you know, I think court reform is 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 Yale named Garrett west called taming the shadow docket. Where west tries to pitch the rise of the Supreme Court's emergency docket as a, as a response to it being way too easy to sue the government. And that the real way to sort of chillax on the shadow docket is to make it much harder to sue the federal government. And I have the exact opposite view, which is it is way too hard to sue the federal government. You cannot sue federal officers for damages for constitutional violations. I lost one of those cases 5 to 4 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 understanding that that relationship sometimes Kate lives in the interstices of doctrines like Bivins or the Tucker act or universal injunctions, I think is 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 pick 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 courts, 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 part and parcel of a much broader court reform conversation that I hope. Right. We're, you know, two and a half years away from having.
- [62:03]
Kate Clonick
Yeah, no, it'll be super interesting. And so I kind of just wanted to you 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, not all of them. I shouldn't. So Kagan, for example, never a judge before or a Justice before she was a justice. But, but they're, but they're not obviously not new to the system. They know that these cases exist below them. I mean, what is going on here that there isn't kind of looking at this practice or is. Are you basically not talking to kind of the liberal justices in this sense that they're not, like, looking at this in self correction. If you had five minutes, I guess, essentially with Robert, what would it be that you said to him? If you could. If you could be nice,
- [63:01]
Steve Ladig
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 title. It is a deliberate 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 cloister. Like, I don't. I don't, you know, the justices go to the circuit judicial conferences, but they show up, they make some fairly canned remarks, and they leave. Like, they don't actually, you know, talk to the judges behind the scenes. They don't go to, like, work in breakfasts and work in lunches. Right. You know, Bose, I mean, the. The only time that we know that, like, the chief was confronted by lower court judges was when Boasberg, in that March 2025 judicial conference, conference meeting, right. Said, hey, Chief, my colleagues are concerned that the administrator, like, so the promise is that the justices 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. Their docket's smaller today than 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.
- [64:45]
Kate Clonick
Yeah, I think that that's really right. And I will just say that, like, at some point, I just was talking to Nicholas Bagley, who's a professor at Michigan and who has a book coming out, I think probably around the same time that your forward actually gets published in the law review. 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 that you guys come from, like, the same good place of trying to kind of reform this system. Be interesting to have you guys kind of come on and talk together.
- [65:25]
Steve Ladig
Not just so. Not just Nick. There's also this book coming out next month from Nico, Bowie and Daphne.
- [65:31]
Kate Clonick
Great. Yeah, And Daphne. Great. Okay, cool.
- [65:34]
Steve Ladig
But, like, there is a move. So this is. This is probably a good place to tie this all back. Back together. Right?
- [65:40]
Kate Clonick
Yeah.
- [65:40]
Steve Ladig
There is a move afoot, especially among progressive academics, to suggest that the way out of this is to weaken the courts.
- [65:49]
Kate Clonick
Yeah.
- [65:49]
Steve Ladig
Right.
- [65:50]
Kate Clonick
Yeah.
- [65:50]
Steve Ladig
And I want to sort of die on the Hill, that the district court's behavior over the last 18 months is all of the evidence we should need about why that's disastrous. And, you know, where would Abrego Garcia be today without powerful district judges? Right. Where would, you know, the law firms that were talking about it, where would they be, Right. Without, like, John Bates in the D.C. 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 hit both horizontally between the courts and other branches and vertically between the Supreme Court and the lower court courts.
- [67:03]
Kate Clonick
Yeah. No, I'm. Thank you so much for kind of wrapping that up. I hope that, like, I. 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. On hopefully after the midterms, it'll be something that starts getting discussed. And so this is going to be sooner rather than later. And I think that is the kind of the future of court reform. And I really hope I. 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 it. I'm so, you know, I couldn't have picked a better person. I would have, like, if they had asked me, I would have been like, Steve Vladic for the first five names. So this is. This is great to read and it was great to. 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 on the Harvard Law Review website in November. Thank you so much Steve.
- [67:55]
Steve Ladig
Thanks Kate.
- [67:59]
Kate Clonick
The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter@lawfairmedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoyed the podcast, please rate and review us wherever you listen. It really does. And be sure to check out our other shows Scaling Laws, Rational Security Allies, the Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work@lawfaremedia.org the podcast is edited by Jen Patya. Our theme song is from Alibi Music, and as always, thanks for listening.
- [68:56]
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