The Lawfare Podcast: How Are the Courts Doing? (October 8, 2025)

Overview

This episode of The Lawfare Podcast, hosted by Natalie Orpet, executive editor of Lawfare, features a probing discussion with Judge Philip Pro and Judge Jeremy Fogel, both retired federal judges and members of the bipartisan Article 3 Coalition, which advocates for an independent judiciary. Amid a period of acute criticism and personal peril for the judiciary, the conversation addresses the courts’ resilience, the unique challenges facing judges today, the shadow (emergency) docket of the Supreme Court, and what can and should be done—both inside and outside the courts—to defend the integrity of the American judiciary.

Key Discussion Points & Insights

1. Context: Attacks on the Judiciary and Judges Under Threat

• Judges face unprecedented levels of criticism and personal threat, including from political figures using large platforms and social media.
• The new Article 3 Coalition, comprising roughly equal numbers of retired judges appointed by both Republican and Democratic presidents, was formed as a voice to defend judicial independence because sitting judges cannot speak publicly in their own defense.

Notable Quotes:

• Judge Philip Pro:
  “It seemed terribly unfair that somebody wasn’t speaking up… when [judges] are attacked, they don’t have the ability or the freedom under the code of conduct… to retort, to engage, and they shouldn’t… But it seemed terribly unfair that somebody wasn’t speaking up.” (05:43)

2. The Nature of Today’s Attacks: Personal, Persistent, Political

• Volume and amplification: Social media and public figures have made attacks more frequent and intense.
• Personal impact: Threats have real emotional and physical consequences for judges and their families.
• Historical context: While criticism of the judiciary is not new, the extent and nature of personal attacks—sometimes implicitly (or explicitly) encouraged by top officials—feels historic in scale.

Notable Quotes:

• Judge Jeremy Fogel:
  “What’s distinctive about what’s going on now is the volume of the attacks… the fact that they’re amplified on social media… The negative part is that it’s very hard on the judges… he got personal death threats, threats against his family. He had marshals at his house 24 hours a day.” (08:18)
• Judge Philip Pro:
  “These are disruptive for your family in particular… I was infuriated that this kind of thing could happen. At the same time… our colleagues on the bench… are resilient… the damage… is the public’s confidence dipping, and that’s the subtle and yet corrosive impact…” (12:32)

3. Resilience of Judges and Their Commitment to the Rule of Law

• Judges report extraordinary resilience and adherence to the law despite threats.
• There is no evidence that judges are changing their decisions out of fear or pressure; their commitment to impartial judicial reasoning remains strong.
• The public’s trust, however, is vulnerable to erosion, threatening the broader legitimacy of the judicial system.

Notable Quotes:

• Judge Jeremy Fogel:
  “I haven’t seen any instances where judges have compromised on their decisions… there’s some cynicism out in the world… I really don’t think federal judges do that, particularly at the trial level.” (11:27)
• Judge Philip Pro:
  “We don’t have the ability to marshal resources to enforce orders… We’ve always depended upon… mutual respect between three separate but co-equal and codependent branches.” (14:04)

4. Why Judicial Independence Matters in Daily Life

• Judicial independence underpins predictability in contracts, economic stability, and protection of rights—benefits that touch everyone.
• Loss of trust in the judiciary leads to systemic corruption and economic decline; comparisons drawn to Russia, Turkey, and Hungary, where attacks on courts have paralleled authoritarian drift.

Notable Quotes:

• Judge Jeremy Fogel:
  “If the courts aren’t trusted and dependable, that’s bad for business… It really is personal. For us to be effective in communicating, we’ve got to make it personal to people.” (23:02)
• Judge Philip Pro:
  “…the economic rights of the entire country… you can vindicate your rights economically as well as personally in a court. That’s the function of a court.” (20:44)

5. Bipartisan Defense of the Judiciary: The Article 3 Coalition

• Coalition deliberately constructed to be nonpartisan; internal culture focuses on the judiciary’s constitutional role, not politics.

Notable Quotes:

• Judge Philip Pro:
  “You wouldn’t know what their political background was or affiliations were with regard to political parties… It’s not a difficult thing… to set that aside because you do respect above all your responsibilities, the oath you take to the Constitution.” (27:40)
• Judge Jeremy Fogel:
  “We’re really trying to speak for the values of Article 3… If things get too partisan, if they get too edgy, we spend a lot of time in our meetings saying, ‘We’re not going to do that…because that would suggest that we’re taking sides in a partisan manner.’” (29:11)

Timestamps for Important Segments

| Timestamp | Topic | |-----------|----------------------------------------------------------| | 03:21 | Judges distinguish between criticism and personal attacks | | 04:57 | State of the Judiciary: Threats and new attacks escalate | | 07:30 | Article 3 Coalition’s nonpartisan approach | | 12:32 | Judges reflect on personal experiences with threats | | 18:27 | Why public trust and confidence matter | | 20:17 | Why judicial independence matters to ordinary Americans | | 27:30 | Bipartisan composition of the Article 3 Coalition | | 36:29 | What “judicial independence” actually means | | 43:13 | The Supreme Court's shadow (emergency) docket problem | | 54:10 | On judges rebuking each other publicly | | 56:05 | What can the public do? Civic engagement and education | | 58:24 | Importance of community outreach and real, non-partisan info |

Memorable Moments & Notable Quotes (Speaker Attributions & Timestamps)

• Judge Jeremy Fogel, on the uniqueness of current attacks:
  “I can’t think of a situation where the President… has said things which have given comfort and encouragement to people who have attacked judges personally. That’s pretty much unprecedented.” (08:37)

• Judge Philip Pro, on the real stakes:
  “We need their trust in what we are doing… if the objects of that ruling threaten impeachment, threaten other retribution… it provokes those who maybe look at it as a call to action… And that poses a danger to our republic.” (15:11)

• Judge Fogel, on criticism vs. ad hominem attacks:
  “It’s not personal. They talk about the law and the basis of the decision… Criticize rulings, that’s legitimate… But calling someone a ‘crazy left wing LGBTQ activist’ is laughable; it’s completely fact free.” (16:14)

• Judge Pro, on the day-to-day implications:
  “Within the judiciary… making people understand this could be me. I could be in this criminal case or this civil case. It’s not abstract, it’s real, it’s concrete.” (20:21)

• Judge Jeremy Fogel, on international comparison:
  “I have had the privilege of doing rule of law programs in other parts of the world… there really is a direct correlation [with economic struggle].” (22:07)

• Judge Philip Pro, on the importance of clarity from the courts:
  “Every court at every level has an obligation to lay out whatever decision they’re making… a rationale for that decision to at least inform the lower courts, the litigants, the public, and the process.” (47:45)

• Judge Fogel, on the shadow docket:
  “If they're changing the law, the least they can do is tell us, ‘Hey, we’re changing the law, and this is why we’re changing it.’” (46:52)

• Judge Pro, final thoughts to citizens:
  “Everybody needs to become engaged because that Constitution is not a perpetual motion machine that will go of itself… It requires the energy of an engaged and informed citizenry to keep it running.” (57:12)

Key Takeaways and Advice for Judges

• Judges should continue to explain their reasoning in rulings, regardless of whether higher courts provide clear guidance.
• Even amid ambiguity from appellate or Supreme Court “shadow docket” rulings, transparency and clarity in lower court opinions are essential for public trust and for the appellate process.
• Resist public infighting or rebukes among judges; such conduct is as corrosive to trust as external political attacks.
• Use internal mechanisms within the judiciary—committee feedback, circuit councils, conferences with the Chief Justice—to raise systemic concerns respectfully and productively.

Calls to Action: What Can the Public Do?

• Civic engagement: Participate in community discussions, civic education, and promote understanding about the real, personal impact of a strong, independent judiciary.
• Push back on misinformation: Seek and share accurate, nonpartisan information about the courts and judicial process.
• Understand and explain: Help others see why a predictable, impartial judicial system matters for everything from business contracts to personal rights.
• Support judges’ safety and dignity by condemning personal threats and attacks—while still freely and robustly discussing court decisions.

Notable Quotes:

• Judge Philip Pro:
  “If we lose [engagement], our republic can be in real danger… That’s something we have to guard against.” (57:50)
• Judge Jeremy Fogel:
  “People would like to get some news that’s not social media, that’s not partisan. That’s actually just, you know, tell me what’s actually going on here.” (58:41)

Summary Table of Topics and Timestamps

| Topic | Timestamp Range | |-------------------------------------------------------------|-----------------| | Context: Threats to Judiciary & Article 3 Coalition | 03:21 – 07:30 | | Nature and Impact of Attacks on Judges | 07:30 – 16:14 | | Importance of Public Confidence and Rule of Law | 16:14 – 24:22 | | Nonpartisanship and the Article 3 Coalition | 27:30 – 31:01 | | Defining Judicial Independence and its Implications | 36:29 – 40:52 | | The Shadow/Emergency Docket Problem | 43:13 – 55:09 | | Advice for Judges and Public Engagement | 54:10 – 59:56 |

Conclusion

The American judiciary, while under considerable and personal threat, remains resilient. Judges continue to fulfill their duties with impartiality, but the cumulative effect of attacks—particularly from influential political voices—threatens public confidence in the courts. The solution, say Judges Pro and Fogel, is twofold: judges must persist in transparency and ethical clarity, and all citizens must take an active role in defending, understanding, and explaining the fragile and essential independence of the courts. Civic engagement, respect for the process, and a bipartisan commitment to the rule of law are, as ever, the best defense against the corrosion of trust in American justice.

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