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Hey everyone, Ellie here wishing you a happy Friday. Yeah, it's a twofer week. We did a piece earlier this week. Probably could have done five pieces this week given the pace of legal news, but we'll spare you that and just leave it with two. So I want to share a quick story about something that happened. this week at CNN, behind the scenes that I think you'll appreciate. So...
I was in our DC bureau and I knew that Wolf Blitzer was going to be doing a one-on-one interview with retired Supreme Court Justice Stephen Breyer. One of the things I had come down here to do was to follow that interview and to comment on it. So I walk into our... green room and one of our guest greeters is there and I say, hey, is Justice Breyer here?
And the guest creator goes, yeah, he's in the back. So we have a green room. But then behind that, we have like a VIP green room, which I'm really not allowed access to. I'm joking, but it's not for me. It's really for people like Justice Breyer. So I said to the guest greeter, I'm not going to bother him if he's back there. And the greeter goes, no, he's like all alone.
And I don't think he would mind. So I go back to the VIP green room and I see a security guy. And I just said, I just want to say hi real quick. And he was like, fine. I tap on the door. The door was halfway open. So I tap on the door. And they're sitting all by himself as Justice Breyer. No phone. I don't know if he owns a phone, but he definitely was not on a phone or holding a phone or staring at a phone like all of us. All he has with him...
is a single copy of his own book. Take it from somebody who's written a book. There's nothing more boring than sitting in a room with one copy of your own book and no phone. So I introduced myself as a Justice Breyer, Ellie Honig. I'm one of the legal people here. Nice to meet you. Now, you never quite know if someone recognizes you or knows you. He had no idea who I was, but he was very, very nice. And he engaged me in conversation. And we talked for...
At least 15 minutes. I know people sometimes get these timeframes messed up in their head. You know, you'll talk to someone for what you think is five minutes, but it's really 90 seconds. I promise you this was at least 15 minutes, one-on-one. He was grateful for the company. I don't want to go into everything.
we discussed because, you know, it was off the record. But I think I can fairly share two things with you that he said to me and that I enjoyed. One is, while Stephen Breyer has many of the concerns that many of us have, he made a point of saying to me over and over, and he said this later on there, with Wolf, I still remain optimistic. I remain optimistic about our courts, about our institutions, and about our government, which I thought was a really good message.
And then at the very end, I had just read, because I was preparing to follow this interview, that Justice Breyer recently had, apparently as a retired Supreme Court justice, you can continue sitting on the lower court. So Justice Breyer had come down.
and sat on the First Circuit Court of Appeals where he first came up through. So he had come down from the Supreme Court, he was retired, but he heard a case or two on the Court of Appeals, which I thought was cool. And so I asked him about that and he said, yeah, it was great to go back to the Court of Appeals.
appeals where I came from. And I said, so do you think you'd ever do a trial? And he looked horrified. He goes, oh, no, way too risky, which those of you who are practitioners, I think, understand that. I understood that. But it was a very cool experience. genuinely sort of starstruck. He was as kind as can be.
As you can imagine, had great stories about American history and things I didn't know. And anyway, I thought I could share those two bits with you. Okay, on with this week's column. As always, love to hear your thoughts, questions, comments. Send them in to lettersatcafe.com. Every single time the Trump administration loses a court ruling, count on this. They'll rail against the evils of a single unelected district court judge upending the president's policy agenda.
This week, a district judge in D.C. temporarily blocked Trump's ban on transgender military troops. Quote, indefensible judicial tyranny, White House advisor Stephen Miller responded on social media. Another judge put on hold the deportation of non-citizens under the Alien Enemies Act, or tried to at least, as we discussed earlier this week. The Trump administration was less than fastidious in implementing his order.
Trump himself called for the impeachment of this, quote, radical left lunatic of a judge, a troublemaker, and an agitator, end quote, prompting a rare public rebuke from Chief Justice John Roberts. Also this week and before that, a string of federal judges paused the efforts of Elon Musk.
and doge to fire federal employees and to dismantle government agencies. Quote, what is the point of having democratic elections if unelected activist judges, scare quotes, can override the clear will of the people? Well, that's no democracy. at all end quote musk asked himself and answered recirculating a post invoking a quote judicial coup the public rhetoric from trump and his brass has become overwrought
And they seem to be dueling to out-emote one another. But when you strip away the histrionics, they're not wrong. The argument against these so-called nationwide injunctions has plenty of common sense appeal. We have 700 or so presidentially nominated, Senate confirmed, but yes, unelected federal district court, which is the trial level judges.
Why should any one of those judges in, let's say, the Northern District of California or the Western District of Texas have the power to dictate policy across the entire country? contrary to the priorities of the duly elected president. Trump is hardly the first president to see his policy agenda stifled by nationwide injunctions, though this is a relatively recent phenomenon and he's gotten it the worst.
An April 2024 Harvard Law Review article calculated that federal judges issued six nationwide injunctions against the George W. Bush administration. 12 against the Obama administration, including its signature immigration programs, 14 against the Biden administration, including the student loan debt forgiveness program, and 64, yes, 64 against the first. Trump administration. Of those 64 original Trump-era injunctions, 59...
came from judges appointed by Democrats. Now, before you start howling or cheering, perhaps, consider that all 14 Biden-era injunctions, all 14 of them were issued by Republican-appointed judges. Indeed, one criticism of nationwide injunctions is that they encourage and reward judge shopping. There's a reason why so many of the anti-Obama and anti-Biden injunctions came from the Northern and Western districts of Texas, while liberal anti-Trump plaintiffs flocked to the federal district courts.
in D.C., New York, and California. Now, during Trump's first two months back in office, district court judges have already issued more than a dozen nationwide injunctions blocking his policy initiatives. He's on pace to shatter his own world record. We can read these statistics either way. From one perspective, it looks like judges, almost all of them nominated by Democratic presidents, have engineered a successful judicial Trump resistance where actual elected Democrats have failed.
Or the stats could simply reflect that Trump has tried to enact more unlawful policies than his contemporaries did. Could be both. The conundrum here is that nationwide injunctions are easy to criticize, but hard to fix. What's the alternative? Impressive think pieces abound, often voicing the valid complaint that judges who issue nationwide injunctions effectively bind not only the actual parties to the lawsuit, but also many outside non-parties.
contrary to core tenets of judicial moderation and fairness. But solutions are elusive. If each district court can reach its own independent ruling, binding only on the participants in that case, We'd land in chaos. What if, for example, one district judge ordered a pause on the military transgender policy, but another allowed the policy to be implemented? What if 11 judges across the country purported to block Trump's effort to withhold federal funding from U.S.?
SAID, but nine others ruled to the contrary. It's unworkable. There might be some way to get these cases up the appellate chain more quickly. That could help expedite resolution of inter-district conflicts, but it doesn't fully solve the underlying problem of inconsistent applications of law based on geography. and it would require a complicated fix that is plainly not imminent.
The good news is that we might soon get some guidance from the Supreme Court itself. The dispute over Trump's effort to end birthright citizenship has now reached the court, at least in a procedural posture. The Trump administration has asked the court to narrow
series of three district court rulings that rejected his position and to hold that those decisions apply only within the geographic districts in which they were rendered and do not therefore bind the entire country. Trump's briefs focus primarily on the problem of nationwide injunction.
and only secondarily on the substantive merits of his position on birthright citizenship. Quote, universal injunctions have reached epidemic proportions since the start of the current administration, Trump's legal team argues. We know how at least one of the nine justices feels. When Samuel Alito found himself on the short end of a recent ruling that effectively blocked the Trump administration's effort to withhold foreign aid funding, he fumed in dissent,
judge, who likely lacks jurisdiction, have the unchecked power to compel the government of the United States to pay out and probably lose forever $2 billion taxpayer dollars. I am stunned. Now, the birthright citizenship case may provide us with meaningful answers, but it also neatly underscores the practical problems. Even if one agrees with the Trump administration's position,
How exactly would this work? Children born to non-citizen parents in the Western District of Washington, where a Reagan-appointed judge temporarily halted Trump's birthright citizenship initiative, are citizens? while those born in, let's say, the Eastern District of Louisiana are not? It's become a default diversionary tactic to rail against these nationwide injunctions. Don't like a ruling.
Point to the dictatorial unelected judge usurping the president's power. Tiptoe up to the line of open defiance of a court order. Blame some unelected self-aggrandizing political wannabe in a black robe. But when we cut through the hyperbole. and the transparent scapegoating, Trump and his supporters are onto a legitimate complaint that has dogged presidents of both parties for decades. Thanks for listening, everyone. Stay safe and stay informed. Meet Klaviyo, the only CRM built for B2C.
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