Lawfare Daily: How are the Courts Doing?

[Intro]

Jeremy Fogel: I don't think we are any of us trying to say that people shouldn't have absolute freedom under the First Amendment to criticize the decisions that the courts make. That's very different from attacking judges personally.

Natalie Orpett: I'm Natalie, Orpett, executive editor of Lawfare with Judge Philip Pro and Judge Jeremy Fogel, both retired federal court judges who are members of a new organization, the Article Three Coalition, which advocates for an independent judiciary.

Philip Pro: Every court at every level has an obligation to lay out–whatever decision they're making at whatever stage–a rationale for that decision to at least inform. The lower courts, the litigants, the public, and the, the process

Natalie Orpett: As Lawfare listeners and readers know, well, federal courts have been hearing a huge number of legal challenges to Trump administration actions. Meanwhile, the judiciary is under constant attack from critics. Including several instances of real violence and intra branch tensions seem at an all time high. I spoke with Judge Pro and Judge Fogle about it all.

[Main Podcast]

I wanna start by just asking you for a sort of brief top line assessment of the state of the judiciary today. So think of it as a sort of State of the Union: Article Three edition. Judge Pro, I'll start with you, what would you deliver for your state of the judiciary?

Philip Pro: From my perspective, the, maybe we should begin with the chief justice's year end report, the end of last year, I saw it after the first of the year. And that chronicled recent history of the increases in threats, attacks, threats of retribution on the judiciary and actual conduct of, of violence murders of of judges and, and other people. And it was kind of an alarming report. You know, we all read about these things when they occur, but it kind of, for me, wove it together.

And with the advent of the new administration and the issuance of this flurry of executive orders that provoked all of the lawsuits that followed before my colleagues, active colleagues on the bench, that in turn generated a tremendous volume of personal attacks made by members of the, the executive branch at the highest level from, from their bully pulpits on social media. And that was disturbing to me.

I began to, to speak out about that in my local bar association at some luncheons and so forth, and it was shortly thereafter that I received a call from the, the Article Three Judges Coalition that was in its nascent state. I think Jeremy was already involved. It, it was the kind of thing that was right down what I thought was necessary right down the alley of what I thought was necessary.

The opportunity for so many of us as retired Article Three judges to speak up on behalf of our hundreds of colleagues who, when they make a ruling, have to confine what they have to say about a case to what they state on the record or what they write in their opinions. And when they are attacked, they don't have the ability the freedom under the code of conduct for judges to retort, to, to engage.

And they, and they shouldn't. I mean, I, that's, that's an appropriate restriction on the, the judges who are deciding the cases, but it seemed terribly unfair that somebody wasn't speaking up.

Jeremy Fogel: So I think one of the things that is really interesting about the Article Three Coalition is it's nonpartisan. We have roughly 50 members, and it's almost exactly 50/50 between judges who were appointed by Democratic presidents and Republican presidents. So, and, and it's, it's by design and the statements that we've issued are, are vetted very, very carefully to take out expressions of partisanship, really trying to speak on behalf of the judiciary in a, in an inclusive and, and ecumenical way. So, I just wanna say that.

In responding to your question, Natalie, I think, you know, I, I'm an, I'm an optimist by nature, so I usually tend to lead with what I see as the good things, and I'll talk about the bad things. I can do this either way. But since, since Judge Pro talked about attacks.

I mean there been on judges before. I mean, we can go back on our history and find other period of time where, where the judiciary attack go all the way back to the Civil War era, you know, and so it's not, it's not un unheard of. I think what's, what's distinctive about what's going on now is the volume of the attacks, the, the fact that, and I don't mean just how loud they are, but also the number of them, the fact that they're amplified on social media, which is obviously something that didn't exist in the past.

In fact that, well, I, I, I can't think of a situation where the president actually threatened anybody. He threatened some people with impeachment, but he hasn't threatened any judge personally. But he, he certainly has said things which have given comfort and encouragement to people who have attacked judges personally. And I think that's pretty much unprecedented. At least to the extent that we're seeing it now.

And I think the, the, the negative part of this is that it’s actually very hard for the judges. And I have a lot of very positive and encouraging things for how judges are weathering this, but being the target, intended of some of these attacks and you, you could call any number of people. I'll mention a couple because they have gone public, so I'm not saying anything I shouldn't.

Judge McConnell in, in Rhode Island who had a, one of the cases involving cuts in employees in the DOGE project. He got the full treatment, he got personal death threats, he got threats against his family. He got pizzas addressed to Judge Salas's son sent to his house. And he and I have known each other well for a long time and he shared with me some time ago what it was like going through that. And he has now been more publicly outspoken about it. He's actually spoken on some public programs.

This is not, you know, just people spouting off on social media. I mean, these things actually have direct emotional, physical impact. He had marshals at his house 24 hours a day. He had to worry about where his family was and, and whether they were being exposed to danger. And this has happened to lots of judges. He just is one of, one of many that it's happened to.

Judge Michelle Child is on the, on the D.C. Circuit. She, she sits here had the same thing happen to her, and she's been very outspoken about it as well. And her offense was being member of an appellate panel that ruled against the administration.

So, so I think, you know, it's kind of an unprecedented period and the that that’s hard, and we'll talk about the shadow docket and the bit later, but I mean, just personal day to day level, this actually has real impact on human beings, these, these threats and even if it's not happening to you directly. Maybe it's happening to a friend or it's happening to a colleague, or you see happening in your courthouse and it affects a entire bench. And I think that's, that's quite important.

You know, on the positive side, I think judges have been quite resilient. I haven't seen any instances where, where judges have compromised on their decisions. I mean, they've, they've done what judges are supposed to do. They look at the evidence, they look at the law they make decisions. I mean, the administration has won some of those cases at the trial court level.

But the point is that I haven't seen judges bending over backwards or, or distorting their judicial reasoning process for political reasons. And I know that there's some cynicism out in the world that that's what judges do. I really don't think federal judges do that, particularly at the trial level because it just, it doesn't, it's not sustainable over a period of time.

I mean, you, you get so many cases involving so many different things, and I think the judiciary's been quite resilient, and I think that's a positive thing. I think there's something good about, when we talk about judicial independence, I mean, we really need to talk about how great it's that for two hundred and thirty odd years, we have had judiciary that's been insulated from politics to, to a large extent. So I, I think that's, that's a good thing.

Philip Pro: I think resilience is the, the key word here that Jeremy just used. And, you know, I've been under threat when I was on the bench twice. I had the marshals protection. I had the marshalls living in a motor home outside my home for two, two and a half weeks. And, you know, that didn't dis and it was a case focused threat. I mean, I understood where the threat was. These weren't anonymous types of threats in terms of where they probably were emanating from. And, and they are disruptive for your family in particular. That's the biggest concern that I felt, and frankly, it provoked anger on my part. If you wanted a reaction, I was, I was infuriated that this kind of thing could happen.

At the same time, I understood that, and I agree completely with Jeremy that our, our colleagues on the bench, just as we were when we were serving, are resilient. They don't dissuade us from doing our job, from being the voice of the rule of law, which is really what we have to do. We're trying to conduct all cases fully and, and fairly.

But I think the damage that comes from this is the public's confidence dipping, and, and that's the, the subtle and yet corrosive impact that we get when people in high political and, and governmental positions in the political branches, so to speak, go on a, a tirade. And, and when a decision comes down, they in essence step out on the porch of wherever they are and set their hair on fire and start making all kinds of outrageous statements about the judges, the courts, and, and, and so forth.

And I agree with Jeremy, with the judges, regardless of where they came from in, in unison have been strong. And, and I would expect they would continue to be, I have no doubt about that on the part of my colleagues that I know and those I don't know. But the public trust, the public confidence is so important throughout the entire government, but especially with the judiciary.

We don't have the ability to marshal resources to enforce orders that we enter. We've always depended upon something that I think is inherent in the design of our Constitution. And that was the idea there would be mutual respect between the three separate but co-equal and codependent branches. And, and they would respect that. Because we lay 'em out, we, we lay out our decisions.

Nobody has to wonder with regard, at least to the, the district judges, and I think the courts of appeal what Judge X, Y, or Z did or said. We lay it out, we give our reasons for our decision so that the litigants know, so that the bar knows, so that the higher court knows, the public knows. We need their trust in what we are doing when we issue an opinion, and if the objects of that ruling are condescending, threatening, impeachment to threaten re, other retribution, and to some, as we've seen with all of the violence in this country, political violence in the recent past and almost every week and every day, it, it, it provokes those who are maybe look at it as a call to action.

And that's dangerous. That poses a danger to our republic that I think we, we also are trying to, to defend with the, the rule of law, which is the cornerstone of that Constitution.

Jeremy Fogel: A distinction. If, if I might just because I mean, I agree with everything. Judge Pro just said.

It's fine to criticize decisions. I mean, you know, you read the. Supreme Court decisions and they don't agree on much anymore, you know, so you're usually, there's usually a split among the justices and, and, and they criticize each other. But I will say it's, it's, it's not personal. You know, they, they talk about the law and they talk about the basis of the decision, and they say this, this decision is wrong because, because, because they didn't think about this and they missed that point.

So I, I don't think we're any of us trying to say that people shouldn't have absolute freedom under the First Amendment to the decisions that the courts make, that's very different from attacking judges personally, threatening them with violence or implying violence, threatening them with impeachment. I mean, the Chief Justice made an extraordinary statement that we don't impeach judges because we don't like their decisions.

We haven't done that for over 200 years, and we have precedent on that in going back to Chief Justice, Justice Samuel Chase back at the beginning of the 19th century. So it, you know, those kinds of threats are out place.

And then some of the characterizations of the judges are are are laughable. I mean they are completely fact free. And I’ve brought this one up in a lot of the appearances I've made talking about this stuff on behalf of the coalition. So, Judge Bates, who sits in, in Washington DC and on the district court and was, was on the FISA court. He was the head of the administrative office of the courts for a while. I, he's a very, very accomplished and very highly respected judge, and he, he made a decision that, that some people didn't like, you know, about a, one of the employment cuts.

And the next day you read in the paper that Judge Bates was a crazy left-wing, LGBTQ activist. And judge Bates is none of the above. And, and in fact, you know, the, the truth is he's 180 degrees different from that. But it didn't matter, you know, that, that somebody thought that it was somehow something that was appropriate to say, and that that bothers me very much.

Natalie Orpett: So, you've, you've given us a lot to think about here, but I want to really bring us to some sort of actionable discussion. Because, you know, there's, there's, to be honest, a bit of a tension in what you're saying, and I think both things are true. But I do wanna talk about that tension.

The first side of which is that judges have been very resilient in the face of very serious threats both to themselves personally, to their families, to their physical wellbeing, to the safety of their chambers and of their clerks, and in the face of personal ad hominem attacks that can be very ugly.

And on the other hand, you're saying that this really presents a very serious risk to the system. And you know, if on the one hand judges are faring fairly well, and if it is true that, that you have not been seeing evidence that judges are adjusting their behavior in response to these threats. You know, you're, you're both have been district court judges, you've talked with juries. You are very good at translating complicated legal principles into plain language.

I want you to explain why this matters, right? And I, I wanna focus us not on these sort of broad principles or concepts like democracy and rule of law and the republic and all of that, because that's at a level of conversation that I think everyone can agree is important, but in a lot, for a lot of people, they wanna know, what does this matter for my day-to-day life?

So what is your, you know, elevator pitch to someone basically who says, I get it. This all seems very problematic. Of course, I am troubled by the idea of that judges are fearing for their safety. That seems wrong, but there are worse things going on in the world right now. Why should I care about this? Judge Pro let's start with you.

Philip Pro: I'm glad you mentioned juries. I mean, that's probably the most direct example we have and, and it's one of the highest examples of civic responsibility, civic virtue, if you will. So I think that those kinds of experiences are critically important and things that we value within the judiciary to, to making people understand why it's important that, that they understand this could be me, I could be in this criminal case or this civil case.

And it's not abstract. It's real, it's concrete. And that's something you, you could talk about in front of a high school class all you wanted, which is also important, or in giving a, a, a talk like we're doing right now, visiting on a podcast, but it can be kind of amorphous and, and you, you get a chance to remind people, this isn't only about our Constitution protecting individual rights and constitutional rights, which are critically important.

But the economic rights of the entire country of, of these people that you're talking to, but everyone, you can vindicate your rights economically as well as personally in a court. That's the function of a court. You know, we resolve, all we do is resolve disputes. That's our entire function really.

Natalie Orpett: Yeah, I've often remarked to people that I think we would all do well to remember that one of the reasons that the United States has one of the most powerful economies in the world is because people who are engaging in that economy understand that there is some predictability in the system of justice. And if that starts to disintegrate, it really changes the confidence that people can have in just the regular day to day of conducting business.

Jeremy Fogel: That's such an important point, Natalie. I mean, I have had the privilege of doing rule of law programs in other parts of the world, and believe me, and, and there's, there's parts of the world where people don't trust the courts at all.

I mean, if there's one thing that they count on is that the judges are being paid off or that, or that, you know, the judges are being unduly influenced by political powers and so forth. Those countries are struggling economically. They, there really is a direct correlation there.

And, and I think, you know, one of the things that I wonder about it and, and, and really am concerned about is it's not that the individual threat, I mean the individual threats have the impact that they have. But I think they also lower the over time they accumulate and they lower public esteem for the judiciary, it just becomes another bad institution in a, in a, in a declining society, you know, and, and, and everybody's crooked.

And, you know, the politicians are crooked and the businesses are crooked. And, and now the judges are crooked too, you know, and the judges are pursuing radical agendas and so forth. And I, I mean, even if, even if that rhetoric just bounces off of people and, and the situation, I mean, it really does add up.

And I bring this up with some hesitation, but because I don't wanna have, have too much made of it. But this is exactly what, what Putin did when he took over in Russia. He just, he just started denigrating judges and started denigrating the judiciary. You know, it's what Erdogan did in Turkey. It's what, it's what Orban did in Hungary.

I mean, there's a, there's a pattern of suggesting that judges are just as corrupt and just as pliable as anybody else in society. And I think that's sort of a subtext to a lot of what, what's going on. And I think it's extremely concerning and it's, it's concerning for the reasons you said. And, and it goes back to something Judge Pro just said, that, you know, this really is personal.

For us to be effective and communicate, we gotta make it personal to people. We can't stay on this high level of, of abstraction. And so, you know, for businesses it's like if the courts aren't trusted and dependable, that is, that's bad for business. And if, if, if the, if the courts are not independent and resilient, that's bad for people who have matters in court. And I think, you know, bringing that home to people is, is part of our job with our, with our coalition.

Philip Pro: It was almost easier in some of the countries, I'm sure. When I visit, I visited many countries on similar rule of law projects, and I'll give one example. Being in Tbilisi, Georgia, the Republic of Georgia, many times there with the colleagues and visiting with colleagues. And I would point out, you know, I come from a state where we have a very large dam outside of Las Vegas Hoover Dam.

It's, it's monstrous and it and if I'm a dam builder and I come to Georgia to build a dam, and I have a contract to build a dam, and there's a problem with the contract and I go into court in Tbilisi and I get homered. In, in other words, I, I get somebody is paying bribes, there's some corruption involved, and the American company loses that case. I'm not gonna build dams in Georgia in the future.

They're not going to develop, as you were mentioning earlier, economically, it's, it's essential to the vibrancy of our economy that we have courts that are predictable, that can be trusted to render a decision based upon the rule of law, based upon whether they're rich or poor or powerful or weak that's not the determining factor it's what the law provides.

And the judges are there to provide that, to be the guardians and the voice of that rule of law in those situations. It's fundamentally important, and it can be, it can be destroyed by authoritarian figures, by corrupt. Figures, five people, if Putin is a perfect example where the, the country's been whipsawed back and forth from trying to climb out of that morass and then sink back down into what they had 50 years ago.

Natalie Orpett: Yeah. So I wanna go back to something you had said earlier, Judge Pro, which was to point out that the, the code of conduct for judges limits judges' ability to sort of speak for themselves on matters that, that are extraneous to the immediate, and I think one of the interesting and particularly tricky things that is happening right now is that oftentimes the threats, the nature of the rhetoric that's ad hominin sometimes that is attacking judges in one manner or another, is often with a political valence.

And one thing that you had both alluded to earlier that I did just want to bring front and center for a second is the fact that the coalition is composed of judges who are appointed both by Republican and Democratic administrations. You're both talking very eloquently about the role of judges in sort of representing and preserving the rule of law as an apolitical institution of Article Three, but I wanna talk a little bit about what you've found in your work thus far on the coalition about the importance of being able to speak with a bipartisan voice.

I mean, each of you, Judge Fogle, you were appointed by President Clinton Judge Pro, you were appointed by President Reagan. I wanna hear about the bipartisan aspect of this in particular.

Philip Pro: It's not really something we think about or even recognize. If you were sitting with the judges in the coalition, or if you were sitting with my colleagues in the District of Nevada in Las Vegas or Reno at a judges meeting, you wouldn't know what their political background was, or affiliations were with regard to political parties.

A great, many of us, myself included registered as nonpartisan upon or shortly after appointment for for good reason. We, we're not aligned with a political party of some kind, or it's not that we don't have political views. Every, every person has political views on the issues of the day, whatever they may be.

But it, it's a, it, it's not a difficult thing I've found, and I think most find to, to set that aside because you do respect above all your responsibilities, the oath you take to the Constitution. And that's why we value our separation of powers. It's not there to make things easy or efficient. It's there to prevent abuses of power.

And you, you, you need that judicial independence, which means simply decisional independence. You can make your decisions without external pressures, without fear or favor, without threats, without a threat that you'd be impeached or transferred someplace, or your pay would be cut. Those were all protections that were built into our Article Three of the Constitution.

Jeremy Fogel: You know, it's, it's interesting, Natalie, I mean, in this Judge Pro and I are both on the, the executive committee of the Article Coalition, and we meet every week. We have a meeting every Monday morning and you know, we, we think about statements that the coalition will make or documents that will issue or doing appearances like this.

And it's very interesting how it works because it's, it's a very bipartisan group. I haven't, haven't really counted how many Rs and how many Ds are, it doesn't matter. We're we're trying to speak for the values of, of Article Three and for the values of the federal judiciary and, and to protect our, our, our colleagues who serve.

We're, we're not there to get into a partisan food fight, even if, even if we don't like something the administration is doing, or even if we like something the administration is doing. I mean, there are people in the coalition who think the current administration's just doing just fine. I mean, and there's, and there's people who think it's, it's terrible.

But the important thing is to really focus on, what are our issues? What are we trying to communicate? And what we're trying to communicate is that having an independent judiciary and, and having respect for the rule of law. And we'll talk soon about what we mean by those terms 'cause I'm not sure that the average American really knows what those terms mean. But that's our job.

And if things get too partisan, if they get too edgy. We spend a lot of time in our meetings saying, well now that's, we're not gonna do that. We're either not gonna sign onto that, or we're gonna wanna edit it so that it doesn't have that same valence, because that, that would suggest that we're taking sides in a partisan manner. And, and we really don't want to do that 'cause I don't think this has anything to do with partisanship. This has to do with core republican small R principles that we're trying to protect.

Natalie Orpett: Yeah. And so tell me, I mean. What would you say the bullet points are of this is what an independent judiciary means? When we say it's important that judges are independent how do you explain that exactly? What does that mean?

Jeremy Fogel: So, you know, the, the first thing is that we have laws, right? I mean, we, we, we have statutes or we have precedents that that govern a particular dispute. And it's the role of the judge to discern what the applicable law is and decide the case to the extent possible based on the applicable legal principles and the evidence in the case, and not, for example, who the parties are, you know, or whose, who's, who's cousin, or something like that. You know, some of the things that happen in, in some systems.

It's, it really is what's the law? What are the facts and how do we, how do we reason to come up with the the resolution that's indicated by the law and the facts? So that's first point.

Second point is that everybody has a chance to be heard. This is the idea of due process of law that, that everybody gets a chance to be heard and, and that means that you not only get a chance to make your arguments, but you get to see the evidence that's being presented by the other side. In other words, it's a full and fair process where everybody gets to expose to the other side and to the judge what, what their arguments are and what their basis of the arguments is. So it's giving people a meaningful right to be heard.

Then you have decision makers who are ethical who decide the case, honestly, based on their best assessment of the facts and the law and what the parties have said. And then you have a process for reviewing those decisions if you don't like them. And a lot of times people don't like them. And so you have a place you can go, you can go to a, a higher court, you can, you can say the, the trial judge made a mistake. You know, where there was, there was prejudice in the way conducted.

But that, I mean, that's pretty much it. Outcome, you, you appeal. And if you don't like the result on appeal, you live with it. And, you know, this was the, the best example of this was Bush v. Gore and half the country was, was very unhappy with what the Supreme Court did in that case. We didn't have a revolution, you know. That, that's what the rule of law means to me.

Natalie Orpett: Absolutely Judge Pro. Anything you would, anything you would add there?

Philip Pro: I couldn't improve on Jeremy's. I would, I would adopt it as, as my own. I, one thing I would stress within that is that, you know, it's incumbent upon the judge that's hearing the case to, to also be very clear about what the issues are and why they're reaching the decision that they're reaching so that everybody does understand that.

And let the judges do their job. Don't go scream about it someplace. You can, you can criticize the ruling that's perfectly legitimate as, as Judge Fogle said earlier, but you know, you take an appeal. That's, that's the process. It doesn't move with warp speed. It's not designed to move real quickly necessarily. There are circumstances where it must, but you, you get a very considered decision, a very considered review on appeal and if appropriate, even in the US Supreme Court, in, in those cases.

So, no, it's, I don't think most people do really, it means a lot of things to a lot of people. I'm sure what the rule of law means, it rolls off the tongue, but if they think about it again, it is so fundamental as a foundation to our Constitution.

Natalie Orpett: Yeah, and I think that this is why it's, it's so important to make sure that the messaging around the importance of this issue is really grounded in day-to-day life expectations. You know, these are buzzwords that are used to mean a lot of capacious things and have slightly different definitions depending on the context. And everyone can sort of agree that they're important in theory, but not really agree on exactly what that means or what it looks like.

Philip Pro: Well, that's, that's, you know, it is the litigants. It's important to them in every case. It's real to the litigants that are before you. And that's it's nothing ab nothing abstract, nothing in theory. It's concrete.

Natalie Orpett: Yeah. So, I, I wanna switch gears. You know, we've, we've been talking about. The way that you are thinking as members of the coalition and trying to convey this message about how important judicial independence is.

In the process, we've talked, we've touched on a couple of different things that are going on right now that are representative of some of the real systemic stress that the judiciary is under right now, and I wanna hear from you on some of those speaking in your capacity as judges who have faced challenges yourselves who have been making the tough decisions behind closed doors and in open court and in deciding about what you say publicly. But I want you to think as if you are directing your comments or your thoughts to fellow judges who are currently on the bench and what your advice would be with respect to the following.

So I wanna start with one thing that we have touched on a bit is the, the shadow docket, the fact that the Supreme Court has been making much, much more significant use of the shadow docket, which is also the called the emergency docket more formally. That that has included several decisions in which the Supreme Court has given no reasoning for the decision that it made.

And then there has also been some tension there, subsequent decisions in other matters where the Supreme Court has criticized lower court judges for not following its orders in the emergence coming out of the emergency docket. We've seen tensions bubbling up even elsewhere in the sort of intra branch relationship between appellate courts and district courts, and in particular between the Supreme Court and lower courts.

There was a very animated panel discussion in the Fourth Circuit not that long ago, where judges were specifically saying, you know, Supreme Court, if you, if you want us to follow, we will follow the law. We want to follow what you say, but you need to tell us what it is we're following. So I wanna hear what you, what you make of that and really what you would say to judges who are currently on the bench who have to think about this as they are confronted with, you know, these exact dilemmas.

Jeremy Fogel: Well, I would say it's a real, this is a real problem. This is something that really concerns lower court judges that I know because they don’t know what they’re supposed to do.

So to back up a second, the Supreme Court normally when it decides a precedential case, something that's really gonna set the law for the country, you know, they, they grant a hearing months ahead of time. They have very, very thorough briefing. They have not only the briefs of the parties, but they usually have many briefs from friends of the court representing all the different viewpoints.

And so they, and then they spend months with, with the smartest law clerks in the country and, and, and the nine justices and everybody else, you know, figuring out what all the angles of the case are. And there is a, a dedicated group of people, about 50 lawyers who are Supreme Court advocates. That's basically what they do. And they're like, they're the best of the best in terms of making oral arguments to Supreme Court. And they, they go through that process and then they take another couple of months to issue decisions.

So it's a very deliberate and very careful process out of which come precedence. And you may like em, or you may not like them, but there's been a process that has gone on and it's a very thorough and inclusive process. And cases that get decided on the emergency docket don't have that. Sometimes they get decided within a, you know, a week or two after the petition is filed. And, and you're right.

Natalie Orpett: Within a couple of days.

Jeremy Fogel: Yeah, a couple, sometimes, couple of days. And, and there's no explanation. And I'll come to one sort of half example in a second, but there's, there's no explanation.

And, and sometimes the outcomes are, are actually quite consequential. That, that, that, you know, we all thought, we, the lower court judges thought that the law was X and the decision by the Supreme Court indicates pretty clear that the law is not x, the law is y, you know, but, but then the one that really sticks in my, and I, I have to mention it as long as I have the airtime here was the case about immigration searches in Los Angeles.

This came out of the circuit that Judge Pro and I both served in. There was a, a, a process that ICE was using to detain people, which I think nobody could really disagree was racial profiling. They didn't have any specific concerns about any particular target. I mean, what they, you know, you knew that they were Latino or appeared to be Latino. They were speaking Spanish, they were working at places like car washes and Home Depots and things like that. And, and based on those factors ICE was given direction to detain those people and determine whether they were lawfully in the country or not.

And in a trial court judge in Los Angeles issued a a a restraining order, an injunction saying that you can't do that. That's, that's racial profiling. You have to have specific suspicion before you detain somebody. It doesn't have to be much, but you gotta have something. And the Supreme Court set that order aside. There was no order. No explanation of the order.

Justice Kavanaugh, and I'll give him some credit for this, issued a a a concurring opinion where he gave his reasons for voting the way he did, but he, what he essentially said is, in this instance, racial profiling is okay. I mean, that, that is a fair summary of Justice Kavanaugh's concurring opinion.

Well, if you're gonna do that, I mean, judge Pro and I learned this when we were in law school. That, that you, you can't detain somebody without specific suspicion.

Natalie Orpett: So did I.

Jeremy Fogel: You know? You know what I mean? And it's like, and it's like they just, if they're changing the law that the least they can do is tell us, hey, we're changing the law and, and, and, and this is why we're changing it. And, and we don't know that.

And, and being from California, that decision still really bothers me. I mean, it just, it, it just, there's, there's something about the lack of process and the lack of transparency that, that bothered me a great deal.

Natalie Orpett: So Judge Pro, given all of that, what, what do you say to your colleagues? You know, all of a sudden we're in a land where we didn't think temporary restraining orders were appealable, but now not only are they appealable, they're reaching the Supreme Court. You know, we're, we're in a world where we're getting decisions that are apparently binding that we didn't know were supposed to be binding, and we have no explanation for what, in fact, the decision is for.

If you're, you're, you're in your chambers, you are facing your litigants and your very heavy caseload. I mean, how do you think about this world that you're in now? What do you, what do you tell your district court judge colleagues?

Philip Pro: It is definitely disconcerting because as, as Judge Fogle said you know, we, we depend upon, we make decisions that are quote, reasoned for whatever our reasoning is.

We explain it and it's there. Part of that function, as I said, is for the parties and, but it's also for the court above you, the Court of Appeals. They see what you did, why you did it. They're going to analyze it, they're gonna make a decision. Tell me. I'll follow whatever the edict is of the Court of Appeals, the three judge or, or en banc panel.

And when it goes up to the Supreme Court, when you're on the merit docket, which will have maybe 70 or 80 cases a year, you're gonna get the very thorough, sometimes many thorough rulings and decisions on it that you look for the synthesis in to know what they're doing. But with this shadow docket, it doesn't tell you enough if it's simply reversed or, or, or granted a per curiam type of, of ruling.

I, I understand that the Supreme Court is drinking from a fire hose with the cases that are coming across their docket right now. So are we all, but there's many district judges. It's like a pyramid, you know, and, and maybe a fourth or a third of that, the fifth of that in the Court of Appeals and nine people at the top.

And they've got their hands full because. I think one thing that's been pretty clear is this administration that that is currently in office, has been pretty selective actually, or strategic with the cases they seek this emergency review on. But in doing so, they're bringing a lot of difficult matters to the court, and these are difficult issues.

I'm not suggesting for a moment that these, these issues that they're getting are just no brainer. Some of 'em, they are like the, the, the, the case that Judge Fogle just referenced, but I, I think every court at every level has an obligation to lay out whatever decision they're making at whatever stage, a rationale for that decision to at least inform the lower courts, the litigants, the public, and the, the process. So I would tell my colleagues to try and understand as best you can what it is, give your reasoning and make your decision.

Natalie Orpett: So it sounds like you're saying that, I mean, you're, you're both talking very compellingly about the importance of the Supreme Court's changing its tack with respect to lack of explanation for its decisions and for, for some of the other things that should change. But it sounds like your advice to district court judges is continue to do your work, continue to show your reasoning and sort of show the receipts.

Philip Pro: Yeah. Until they give you the, the rationale that tells you otherwise.

Natalie Orpett: Is there anything else that they should be doing to account for this vastly different reality in which we find ourselves or, or should they continue apace?

Philip Pro: I think they're doing it and, and there are mechanisms you don't need to go out and, and, complain about it publicly or something. There, there are mechanisms to address some of these issues within the court governance structure of the federal judiciary through the committees that we have, through the circuit councils. These things can, can percolate up to the top, but there are ways that you can work within the system to, to address it. And I think they're doing all of that. I think they're doing the best they can.

Jeremy Fogel: I, I think that's right. And I think you mentioned Natalie, the Fourth Circuit judges is talking about that during an argument. And that's one thing Judge Burroughs in, in Boston did that. She's the judge handling the Harvard case among other ones. And, and, and she said in one of her recent orders, you know, I, I don't understand what the court's asking me to do. I really need more guidance. And that's fine. That was a good thing for her to say. And she said it very respectfully.

Judge Tacha, Deanell Tacha from Kansas–Judge Pro and I know well–you know, said, why don't they just give us a paragraph. At least, at least if they're, if they're gonna do something, you know, at least have enough transparency that you can get why they made the order that they did, especially if it's changing a, a precedent.

You know, Judge Young, who's also from Boston, and I gather is in the news again today, but he was in the news about a month ago where he didn't respond the way a couple of the justices thought he should have to one of these orders that I don't think Judge Young or anybody else really knew what the point of the order was.

And that was when he received the rebuke, he said, I, I didn't violate anything intentionally. I didn't realize I was violating anything. You know, and I'm, and I'm sorry if I did, you know. So it was, I, I think people kind of making it known.

And what Judge Pro said is, is actually really important. The judiciary has a process, it has the conference committees, it has the, the chief judges of the circuits. The judicial conference just met, they meet in, in September and March of every year. One of the things that happens is that the, all of the members of the judicial conference where the, the chief judges of the circuits and a district judge who's elected by the district judges of each circuit, so there's 26 members.

They each have a morning where they have breakfast with the chief justice. I've been, and, and they're actually pretty candid and, you know, it's an opportunity to say things. They aren't on the record, they're not official. It's just, it's an opportunity to say, hey chief, literally, you know, this is something we're dealing with. You know, we really want you to know, you know, there's, it's an opportunity to, to engage and be, to, to use that opportunity, which is a, which is a really rare opportunity.

Now what happens with it? I, but, but there is a process for, for giving feedback. And I, and I think I, I know, and, and Judge Pro said this too, you know, one of the things judges can do completely within the code of conduct is they can speak through their opinions. So if something's bothering you, you can write about it in your opinion, you know, and you, there's a way to do it. And it's, it's, it's, there's nothing inappropriate about doing that.

Philip Pro: Natalie, I've got one other point that I would make that I would urge my colleagues not to do caution, a word of caution.

And I think when judges in the higher courts do this, it's inappropriate. And that is to rebuke their colleagues on the record, either from the higher court or it runs the other way. As we've seen with some of the cases, at least one of the cases just discussed. That, that's, that's not appropriate and it doesn't contribute it, it actually diminishes, I think the process.

It's the same thing when we're getting these external criticisms and external ad hom attacks, that's, you know, something on that's not necessary and it puts the judge in a position of, you know, trying to respond into the next opinion of, you know, with an apology or whatever, but an explanation. And we, we shouldn't have to be, be doing that.

Natalie Orpett: Yeah, I think that's a really important point. And I will note without asking for comment on it, that I think I am very convinced of the significance of that. And I note that the Supreme Court itself has not abided by that caution, and there has been really some very direct, and in some cases really personal comments about lower court judges.

Jeremy Fogel: Yeah. Yes.

Natalie Orpett: And I will, I will say that I find that deeply problematic. We are short on time, but I want to give you one last question and, and it's a, a challenging one, but I'm hoping you can leave us with a couple of words each of you. So assume that you have succeeded in your mission of convincing the public that this is a very important issue and everyone needs to be concerned about the independence of the judiciary. What should people do about it? Judge Pro, let me start with you.

Philip Pro: We all can do something. We have an obligation as citizens. The constitution begins, you know, we, the people of the United States in the preamble that we conferred, we granted the powers to each of the three branches and articles one, two, and three.

And I know it's through representatives that conferred or congregated in Philadelphia and so forth. But these, these had to be ratified, and you have. A responsibility to pry and educate your fellow citizens. Go back to your communities. Every one of us has a community or a series of communities, many communities, social communities professional communities, family communities, religious communities.

Pick a, pick a thing where you aggregate or gather together, look for opportunities to raise this topic because Michael Kammen, a historian wrote a, wrote a book a good 40 years ago called “A Machine that Would Go of Itself” in, in which he pointed out the dichotomy.

People have such reverence for the Constitution. The average citizen, many of them have reverence for the Constitution, but they have such misunderstanding of what in the world it is and how it works and their rights and responsibilities as citizens. It's why we do civic education programs. From the time we're in law school as judges and lawyers and all of us have, have, have done this, we do it routinely. It's a very valuable experience.

Everybody needs to become engaged because that Constitution is not a perpetual motion machine that will go of itself if Kammen said it requires the energy of, of an engaged and informed citizenry to keep it running. To keep it running, never smoothly, but to keep it running at all. And if we lose that, if, if, whether through the combination of the mind numbing social media that we see, or just disinterest apathy. If we lose that, our republic can be in real danger. It, it really can. And that's something we have to guard against.

Jeremy Fogel: I wanna just add to those wonderful comments that. The most satisfying talk I've given in the last couple years were to a retirement community in California where I invited to come talk. And and there, there were a couple of lawyers there but most of the people were not lawyers there. About one hundred to 125 people there.

And, and it was so much fun because I gave my talk and then we had time for questions and we ran overtime. I mean, both times people had so many questions, you know, why doesn't the Supreme Court have an ethics code? You know, do do the justices really dislike each other? You know, why do they write such snarky opinions?

You know, and it's like, and it's like it was the questions of regular people who are not lawyers or judges would ask and, and it just didn't stop. And, and, and you could really tell that people care a lot about the country and they care a lot about things being lined up right. And that they've got, they've got concerns.

And I, I think those of us who can, ought to do a whole lot more of that, you know, we ought to go to retirement communities and churches and community groups and, and, and anybody who will listen because those people actually would like to get some, I was talking with someone about this this morning. They would like to get some news that's not social media, that's not partisan.

It's actually just, you know, tell me what's actually going on here. You know, I don't want spin, you know, I, I want, I just wanna know more about this particular world that we're living in, and I think we're in a particularly good position to do that.

Natalie Orpett: Well, I think that's a great place to leave it. Judge Fogle and Judge Pro, thank you so much for joining us.

Jeremy Fogel: Well, thank you. Thanks for having.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

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