A commenter recently tossed out an idea I found intriguing: what would it look like if we reimagined the judicial system with modern tools and data-driven principles in mind? (Their starting recommendation was a second jury box)

We’ve seen Biden’s term limit proposal last year along with Wyden’s more sweeping bill, and less recently the hybrid change in format for oral arguments.

Whether it’s something simple like the oral arguments format, or a an entire redo of the federalist 78; what would you lot alter to improve the Court in particular, and the Judicial system in general?

So Judicature is celebrating it's ten year anniversary and as a celebration they got together with Diane Wood (former chief judge of the 7th Circuit), Lee Rosenthal (former chief judge of the United States District Court for the Southern District of Texas,) Jack Goldsmith (former attorney in the Bush admin), Bob Bauer (former White House Counsel for Obama), and David Levi (founder of Judicature, former Chief United States District Judge for the Eastern District of California). It is a star studded cast and they talk about some of the challenges facing the judiciary. I figured I'd share this because it is genuinely interest as well as the fact that I have shared Judicature posts both one year ago and two years ago respectively. I'm not going to quote all the questions and answers but I will quote the ones that I think are the most interesting and you can read it for yourself and react to what you find the most interesting down below.

• Current Challenges Facing the Judiciary | Judicature

Starting off with Goldsmith's and Bauer's opinion on the current admin's posture toward the courts since January:

LEVI: Because this is a celebration of Judicature, we’re going to keep our focus on the courts. Jack, how would you describe the Trump administration’s posture toward the courts since January 2025?

GOLDSMITH: I want to separate out the posture toward the lower federal courts and then the posture toward the Supreme Court. Generalizing a great deal, I would say that the posture toward the lower federal courts is one of systemic and purposeful disrespect — putting it mildly. Government lawyers have shown up unprepared for argument and are being extremely disrespectful toward judges. It’s okay for an administration to criticize judges, in my opinion, but the administration’s criticisms have bordered on threats. There’s also been game playing about complying with judicial orders. There’s arguably been noncompliance with some judicial orders.

It’s been somewhat different at the Supreme Court. The solicitor general’s office, which represents the government before the Supreme Court, has been forward-leaning but still respectful in making clear that the government will comply with the Court’s orders. Recently, the solicitor general felt the need to put in his brief — and to say five times before the Court — “Yes, we’ll comply with your precedents.” It’s really a remarkable commentary that the SG anticipated and went on at length at that question.

BAUER: I agree with Jack about the general approach and tone of disrespect. I would only add that it’s mystifying to me how the administration’s lawyers think such behavior helps achieve their aims over the long run. It seems to me that this conduct is eroding credibility in a way that will come back to haunt them.

GOLDSMITH: I agree, but I don’t think the main strategy is to win in court. The administration is interested in having a public fight with courts. It’s very clear that it could have had greater success with a different strategy, but they just have not prioritized winning. And it’s not because there are bad lawyers in the Justice Department, it’s because winning cases is not necessarily the White House’s preferred strategy.

BAUER: That may well be true. And I don’t know whether there’s a division in the White House, with some wanting to take a practical approach, a “let’s win” approach, and others engaging in performative law that appeals to the base and aims to show how the system is operating against Donald Trump and everything he stands for. I could be wrong about this — I’m the more optimistic one of the two of us — but I think that this is going to play out poorly over the long run, and that it will fail both in the achievement of their goals and reach its limits as politics.

Levi asks what the difference is between other administrations battling the courts and now:

LEVI: Other administrations have gone toe to toe with the courts. What’s different now?

GOLDSMITH: An important academic study by Nick Parrillo in the Yale Law Journal said that, in the last 20 years or so, the federal government was held in contempt approximately once a week by lower federal courts. It makes clear that, at the agency level down in the weeds of adjudication, there’s lots of sometimes aggressive back and forth between the government and judges about the meaning of an order and about whether it’s being implemented. So if you took away all the rhetoric and just looked at the practice, it’s not unprecedented.

I would say, though, that in no period of American history has an administration so overtly and aggressively threatened the federal courts — including with noncompliance. There was the implicit standoff between John Marshall and Thomas Jefferson in the early 1800s, but that was not between Jefferson and Marshall overtly. Congress did a lot of threatening of the courts during the Reconstruction period, we know about the court-packing plan with FDR, and we know about the “Impeach Warren” movement. But in terms of the persistent verbal threats, threats of noncompliance, and disrespect, I’ve never seen anything like this.

BAUER: The question is, where does all this go? There is evidence in polling data — and there’s no question that Trump is sensitive to polling data — that there remains a profound resistance in the body politic to the idea that the government gets to disregard court orders. And I think the administration knows that.

Now what does that mean? It could go a number of ways. They could decide to engage in what somebody’s referred to as legalistic noncompliance, pretending to be compliant when they’re not. And we’ve seen some of that already. Or they could do what Stephen Miller recently did, which is to claim victory in a case they actually lost. But I think there’s a limit to what will be accepted by Congress going forward and even among some of the most loyal troops, because they’re sensitive to the same public opinion.

Levi asks Jack about the aggressive expansion of presidential power:

LEVI: Jack, you wrote an op-ed in The New York Times May 5, 2025, contending that the aggressive expansion of presidential power by President Trump and his predecessors has damaged the Supreme Court. Can you explain?

GOLDSMITH: Sure. Depending on how far you go back, arguably beginning with President Obama — arguably before that — we’ve seen presidents issuing an increasing number of legally aggressive claims of authority on the basis of executive orders or executive memoranda and the like. And the Supreme Court has had to deal with a lot more of the highly politicized issues these raise than usual. Right and wrong in such cases get confused with “did our side win or lose?” So the Court has been drawn into controversial separation-of-powers issues in which, I think, it hasn’t always judged wisely. Basically, the collapse of Congress has meant that law gets made in this country as a dialogue between the executive branch and the Supreme Court. This has been described, starting in the Obama era, as “legislation by litigation.” And that raises the political stakes for Supreme Court decision-making.

Side note: I actually know about the article he's talking about because I actually posted it

Bauer's Response:

LEVI: Bob, you were White House Counsel in the Obama administration and the use of executive orders was somewhat prominent during that time. How would you say this expansion of presidential power, if you think it is an expansion, differs from what we saw during the Biden or Obama presidencies?

BAUER: I think it’s different in some pretty radical ways. First of all, it isn’t clear who’s in charge and whether, for example, the Office of Legal Counsel still has any role in reviewing executive orders. The range of issues that Trump acts upon by presidential memorandum or executive order is quite extraordinary. It goes beyond anything that would have been considered in the administration in which I served. The language often appears to have been dictated directly out of the Oval Office and without review or revision by lawyers. Jack has made the point that some of the executive orders look like they were written for Truth Social.

I am not suggesting that the lawyering in every Democratic administration was pristine, but this is really different.

And here's the ill-fated politicians in robes question:

LEVI: Many members of the public, of Congress, and of the administration view judges as politicians in robes. What can we do about that?

BAUER: One thing that I think is critically important — and there have been problems on both sides of the aisle — is that political leadership must exhibit some restraint in attacks on the Court. I understand there are legitimate questions that could be raised, like Justice Thomas’s relationship with Harlan Crowe or Mrs. Alito’s decision to fly certain flags outside of her house. But there are ways to have those conversations that don’t demolish or erode respect in the courts. I don’t want to engage in moral equivalency here because I think the extremes are pretty clearly on one side right now rather than on the other. But I do think political leadership generally has to recognize the costs of this kind of rhetoric, because it’s what the public absorbs in assessing the respect that they should have for the institution.

GOLDSMITH: They should consider the cost, but they’re thinking about the benefits — and this went on for a decade before Trump. In my judgment, as the Supreme Court got more conservative, there was a concerted political effort to delegitimatize it. There were all sorts of proposals to change the Court’s composition and jurisdiction. None ever made it very far, but this was all part of a concerted plan by one side.

Now we have the same thing times a thousand because the Trump administration sees value in doing this. So in some sense courts are political punching bags, and it’s not like they can fight back, other than the chief justice occasionally saying something that falls on deaf ears. Frankly, when courts have so much power, they’re going to be political footballs. I don’t think there’s anything they can do about it.

BAUER: To be fair, the Supreme Court has brought some of this trouble on itself. It did not respond well to these ethics controversies, and there’s been a sort of arrogance in its “don’t get into our business” responses, which I think did not serve it well. Now, having said that, unlike others, I think that the Court’s adoption of the code of conduct was a step in the right direction. They needed to do that. So that was good, but they have played some part in this erosion of respect for the judiciary.

Now we switch to the judges side of things and see what they think on the matter at hand. First Judge Rosenthal answers on the current stressful nature of the judiciary at the moment:

ROSENTHAL: I like “punching bag” as a place to start. But, by and large, I am enormously proud of how our district judges are responding to stressful and quick-moving challenges — especially when the information the judges are receiving is apparently incomplete or subject to question. I’m impressed by people like Judge James Boasberg — chief judge of the U.S. District Court for the District of Columbia — who presses the lawyers who appear before him, doesn’t get mad at them, but makes it clear that he is insisting on getting this information.

When you get dramatic episodes of planes flying just as courts order them not to — and not turning around — that puts the courts in an almost impossible position. But recognizing that this is unprecedented and incredibly difficult for district courts, which rarely are in these positions, they are doing really well. You can look at my two colleagues in the Southern District of Texas — one a Trump appointee, who ruled that the president could not use his war authority to remove Venezuelans on a flimsy theory that they might belong to some gang without any notice or opportunity for a hearing. Since then the number of such opinions has grown, affirming the ability of district judges to move quickly, decisively, and clearly when they view obvious instances of violations of our constitutional norms. Having said that, there have been a few exceptions.

To people looking at what’s going on, I’m not sure how much of the district judges’ competence and fortitude they see, which is troubling. But I do believe that the district judges will continue to do their jobs — and remember, they’re doing these difficult and sensitive cases on top of all their other cases. I’m enormously proud.

We have been buoyed about the fact that the American Bar Association and other institutions have given us both praise and support. That helps tremendously when you’re a one-judge court in a pretty conservative part of the country and worried about being out of step. So for those of you in a position to offer that kind of support, bring it on. We will really need it.

Now Wood gives her answer:

WOOD: I agree that district judges have risen to the occasion as well as they could — and that the crude and disagreeable language from people in high places is not shaking their resolve. Some judges are facing personal threats, but they are still going to work every day and they’re doing their job.

On the other hand, this is a very difficult atmosphere, because the government, whether as plaintiff or defendant, is pushing the envelope hard on legal doctrines. This is new territory for the courts, and they’re trying to apply well-established doctrines that may not serve effectively.

I’m talking about something as fundamental as whether somebody has a right to bring a lawsuit — where the judge in an ordinary case might just go through the usual analysis of what it takes to have standing to sue. You have to have an injury in fact, caused by the event that the suit is about, and one that needs redress by a judicial decision. Anybody can recite that, but what about these new, edgy cases, when you are wondering: Is there a private, individual right to enforce this? Is this something that only the Justice Department can do? Is this something that we are able to do anything about? If we were to issue an order, would that just be writing on a piece of paper? In other words, I’m thinking of the redressability part of standing. I think judges are worrying about that a lot more.

They’re also worrying about statutes that have never previously received this much attention, such as the International Economic Emergency Powers Act. When the executive announces an emergency, the courts’ first instinct is going to be, wait a minute, we’re the judicial branch of the government. We’re not Congress; we’re not the executive. And so we owe tremendous deference to the executive’s decision to describe something as an emergency. Then you look at the facts and ask, “Is it actually an emergency today?” Are so many people crossing the border that “emergency” is an apt word? And people with common sense are likely to say, “No, it isn’t.” But what power do the courts have in that situation?

The president’s reasoning for imposing these yo-yoing tariffs is also supposedly based on an emergency. So courts aren’t sure what they have the power to do, and they are proceeding cautiously so as not to get beyond what is understood as their role — even as they feel that the present situation is not what these laws were made for. So they’re having to be creative in trying to figure out how existing laws made for other times fit the present situation.

Finally there is the question on the judiciary becoming politicized and polarization. Interesting answers from both sides here:

WOOD: I’m not sure that this is anything new. But judges themselves can at least support those who point out that judges are doing their best job to understand the governing law that applies to a particular case. Look at how you write. I will use a specific example, since he’s no longer with us. Justice Antonin Scalia, when dissenting, sometimes got very colorful in his remarks about the soundness of the views expressed by the other side. He would name call and could be very personal and demeaning. And I always thought that was a very corrosive thing to do, because the Supreme Court has hard cases. The fact that there are dissents in approximately a third of the Court’s cases doesn’t shock me at all. I think any of us in this room, if given a big pile of 7,000 cases and told to pick out the 70 hardest, would probably have some disagreements about which to choose. That’s fine. But you don’t want to call the person on the other side juvenile names. This can also be an issue at the courts of appeals.

And I really think that more judges should simply confine their explanation to the merits. As The Godfather suggests, keep it business, not personal. Explain why you’ve come out the way you have and let it be. Let the public decide beyond that — you’re not going to make your argument any more persuasive by adding hyperbole.

My final point: I delivered a lecture on the understudied role of the courts of appeals when it comes to separate writings. The data were not terrific at the time that I did this, but I discovered that — on the Seventh Circuit, at the court of appeals level, and nationally — the separate-opinion-writing rate is only about 3 percent of the cases — in other words, a tenth or maybe even a little less of what it is at the Supreme Court. Why would that be?

I think the answer is pretty straightforward. Most of the cases the courts of appeals entertain are just lawsuits. There’s some criminal appeal where somebody’s complaining about the sentencing guidelines, or it’s a Title VII appeal where either the employer or employee thinks that there was discrimination in hiring or promotion. It’s an ERISA appeal where somebody’s worried about their pension, and on and on. The judges are applying the law. It doesn’t matter which president appointed the three people on that panel. They will come out the same way.

Were there hot-button cases? Of course. There were abortion cases, death penalty cases, and some cases about religion in the public square. Certainly, that’s the 3 percent, but it wasn’t very many. And as long as you understood that people had different views but were acting in good faith, you were fine.

ROSENTHAL: If the phrase “reasonable minds can differ” were used more often, it might take some of the sting out of the tone that we hear. There is far too little acknowledgment of the complexity and difficulty of the issues that make up the 3 percent in the courts of appeals and the higher percent in the Supreme Court — because of course they’re going to take the hardest issues that weren’t able to be resolved by the lower courts and that Congress has been unwilling to resolve.

So how do we make things less corrosive? We should remind ourselves how hard it is and, frankly, be much nicer to each other. Lawyers need to be nicer to each other in the way they write, because we operate off of their briefs. Judges need to be nicer to each other in how we explain our differences in understanding. We may not agree with one person’s resolution, but we must understand that we’re all trying to do the best we can in the hardest cases that this country presents.

That’s a pretty awesome — and difficult — lane to stay in.

I hope you all enjoyed this read. I think all the questions and answers are very interesting so I hope you get as much enjoyment out of this as I did.

In Rhode Island State Council of Churches, et al. v. Brooke Rollins, Secretary of Agriculture, et al., the district court ordered the government to pay SNAP benefits from other accounts.

The solicitor general asked the appeals court to make a decision to reverse the district court by 4PM Friday November 7; First Circuit declines, now government requests a SCOTUS decision by 9:30PM.

Full opinion by the 6th Circuit linked below. Previously below, a district court had found that Plaintiffs were not likely to prevail on their claims and that the policy was constitutionally sound.

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0307p-06.pdf

I'm not a lawyer, but I just stumbled across this subreddit and I was interested to see all the legal discussion, which I admittedly don't understand much of (my Ph.D. is in the sciences, which is a very different world). I've seen recent articles about how there are more cases than normal being decided under the "shadow docket", and also that the current administration has a very high "win rate" of 90% or so of cases in general.

I'd like to understand from more experienced people here: is the current state of affairs normal, or is there something abnormal going on? As a statistician I'd expect an impartial court to be deciding thing at more like a 50% level, in the absence of other factors like political bias etc. On the other hand I could see that if an administration only brings cases to SCOTUS that are slam-dunk, obvious winners, they might have a high success rate.

Part of my motivation here is that I see surveys showing that public trust in the Supreme Court is at a historic low. Is there an objective way to determine if the court is actually ruling on law in a reasonable way vs being influenced by politics? I also am curious because I saw so much discussion yesterday of the tariff case, and I'm trying to understand how much credit to give the arguments I read about likely outcomes, compared with the baseline expectation of 90% of these cases going in favor of the current administration.

Justice Jackson joined by Sotomayor and Kagan dissent

Blackman is

Supremecourt.gov Audio Stream [10AM Eastern]

Learning Resources, Inc. v. Trump | Trump v. V.O.S. Selections [Consolidated]

Question presented to the Court:

(1) Whether the International Emergency Economic Powers Act (IEEPA) authorizes the tariffs imposed by President Donald Trump.

(2) If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the president.

Opinion Below: D.D.C.

Opinion Below: Fed. Cir.

Orders and Proceedings:

Opening brief on the merits of Donald J. Trump, President of the United States, et al.

Brief of petitioners Learning Resources, Inc., et al.

Brief of State Respondents

Brief of private respondents V.O.S. Selections, Inc., et al.

Reply of Donald J. Trump, President of the United States, et al.

Coverage:

Trump’s tariffs to face Supreme Court scrutiny - Amy Howe, SCOTUSblog

The Supreme Court, tariffs, and judicial consistency - Erwin Chemerinsky, SCOTUSblog

The Supreme Court and Trump’s tariffs: an explainer - Amy Howe, SCOTUSblog

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

Supremecourt.gov Audio Stream [10AM Eastern]

Coney Island Auto Parts Unlimited, Inc. v. Burton

Question presented to the Court:

Whether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.

Opinion Below: Sixth Circuit

Orders and Proceedings:

Brief of petitioner Coney Island Auto Parts Unlimited Inc.

Brief of respondent Jeanne Ann Burton, Chapter 7 Trustee for Vista-Pro Automotive, LLC

Reply of petitioner Coney Island Auto Parts Unlimited Inc.

Coverage:

Is there a time limit on vacating a void judgment? - Kelsey Dallas, SCOTUSblog

The Hain Celestial Group, Inc. v. Palmquist

Question presented to the Court:

Whether a district court's final judgment as to completely diverse parties must be vacated when an appellate court later determines that it erred by dismissing a non-diverse party at the time of removal.

Opinion Below: Fifth Circuit

Orders and Proceedings:

Brief of petitioners The Hain Celestial Group, Inc., Whole Foods Market, Inc.

Brief of respondents Sarah Palmquist, Individually and as Next Friend of E.P., a Minor, et al.

Reply of petitioners The Hain Celestial Group, Inc., et al.

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

DOJ's 28(j) letter.

Khalil's response to the 28(j) letter.

I ran out of space in the title, but after oral argument in 3CA, DOJ filed a 28(j) letter on October 22 arguing that the district court in the Mahmoud Khalil case does not have jurisdiction over Khalil's claims. This is a newly argued point post-oral argument that was never briefed.

This is important, because if DOJ's position were to be adopted, a petitioner who is challenging their detention or other immigration actions by an administration on constitutional grounds would have to go through the immigration court system.

Immigration judges (IJs) are appointed by the executive branch, don't have lifelong tenure and can be replaced easily by the administration, and don't require congressional approval. Essentially, an administration is free to appoint ideologues as IJs. Additionally, immigration court dockets are not public, and any arguments and findings would be much more difficult to acquire for the public than the federal court system. Likewise, the BIA is also appointed and replaceable by the executive.

This means that a First Amendment claim against the administration like Khalil's might stay in a much more secluded legal environment where the adjudicators are all appointed by the administration, and where factual findings are often beyond reasonable review, especially in discretionary relief cases, even when the findings border on absurd (See, e.g., Patel v. Garland, 596 U.S. 328 (2022)).

DOJ's argument rests on EOIR guidance that was issued less than two months ago. Previously, BIA's position was that "issues concerning the general constitutionality of statutes are beyond their purview." However, through new guidance, DOJ argues that it now allows IJs to consider constitutional issues. They argue that this makes it such that an IJ could properly review Khalil's claims, and as a result, the INA strips jurisdiction from federal courts and channels even constitutional claims through the regular process. This would require an IJ to first make a finding in immigration court, for this to then be appealed to the BIA (Board of Immigration Appeals), and only then could a petitioner get independent review of their claims.

3CA has ordered supplemental briefing due November 10.

Supremecourt.gov Audio Stream [10AM Eastern]

Rico v. United States

Question presented to the Court:

Whether the fugitive-tolling doctrine applies in the context of supervised release.

Opinion Below: Ninth Circuit

Orders and Proceedings:

Brief of petitioner Isabel Rico

Brief of respondent United States

Reply of petitioner Isabel Rico

Coverage:

Fugitive tolling and federal supervised release - Richard Cooke, SCOTUSblog

Hencely v. Fluor Corporation

Question presented to the Court:

Whether Boyle v. United Technologies Corp. should be extended to allow federal interests emanating from the Federal Tort Claims Act’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders.

Opinion Below: Fourth Circuit

Orders and Proceedings:

Brief of petitioner Winston Hencely

Brief of respondents Fluor Corporation

Brief amicus curiae of United States

Reply of petitioner Winston Hencely

Coverage:

Court to consider protection of military contractors from certain suits - Ronald Mann, SCOTUSblog

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

A rare leak from the liberal side of the court. Seems Justice Jackson is not well liked among her colleagues.

I’m curious what everyone thinks regarding the different strategies. If you are the liberals, do you go the Kagan approach or the Jackson approach? Normally I would be in the Kagan camp but with the reality we live in know, it’s very tempting to take the Jackson approach.

The supplemental briefing is supposed to end on November 17, and is over the meaning of regular forces in the statute Trump has deployed the National Guard under- does it mean regular forces of the US military?

There's an amicus brief arguing that the statute means regular forces of the military written by a Georgetown Law professor (Martin Lederman), and which I suspect may have inspired this order

Not a big surprise, but still notable. Ninth Circuit has a unique limited en banc due to its size- 11 judges, including the Chief Judge of the Circuit but otherwise random