Democrat Sounds Alarm for Judiciary Over High Court Docket (1)

The top Democrat on the Judiciary Committee’s courts panel told Chief Justice John Roberts at a judiciary meeting Tuesday that the Supreme Court’s orders on the so-called emergency docket greenlighting Trump administration policies represent a threat to a democracy.

The rule of law “is at a Category 6 code red, six alarm fire,” Rep. Hank Johnson (D-Ga.) said Tuesday at a closed-door biannual meeting of the Judicial Conference, the federal court system’s policymaking body led by the chief justice, according to a copy of his prepared remarks shared by his office.

Still, a top judiciary official cited the meeting’s confidential nature during a press briefing Tuesday in declining to answer reporters’ questions on similar topics, like the Supreme Court’s unexplained orders and whether they’ve fueled further criticism against judges.

Johnson made his remarks to the Judicial Conference as the judiciary has faced escalating tensions over the justices’ practice of releasing orders in still-pending cases that have reversed lower court decisions blocking federal policies, without providing much explanation or reasoning.

These orders have, in some instances, left judges guessing about how to interpret the Supreme Court’s mandates as they field a slew of challenges to the Trump administration’s agenda. Some trial court judges have written in recent opinions that they are doing their “best” to interpret the Supreme Court’s guidance despite limited reasoning.

“You are an institution that values tradition, precedents, and wise moderation, and yet your reticence to allow injunctions to stand in clear cases of executive overreach has resulted in an even-more reckless and unchecked executive while challenges to his overreach remain pending,” Johnson said.

And by the time the cases reach the Supreme Court to decide the ultimate outcome on the merits, it will be “impossible to undo the damage that will have been done to our democracy,” he said.

Johnson also said the portion of the Judicial Conference’s meeting where lawmakers and other officials speak should be made public.

Asked during Tuesday’s briefing if the challenges for lower court judges in interpreting Supreme Court guidance on the emergency docket was discussed at the meeting, Chief Judge Jeffrey Sutton, who chairs the conference’s executive committee, said the judiciary meeting is “confidential” and wouldn’t focus on issues involving the high court.

“The Judicial Conference does not superintend the US Supreme Court, so that would be an unlikely topic for us to be saying, ‘how can we deal with an issue that’s really for the Supreme Court?’” Sutton said.

He also said that there’s a “lot of reluctance” from lower court judges to comment on the Supreme Court.

John E. Jones III, a former federal trial judge in Pennsylvania, said in an interview after the briefing that it would make sense for the judiciary to not make public statements, as its budget is controlled by a Republican-held Congress and will be signed off by the Trump administration.

He said the Judicial Conference also takes its cues from Roberts, who rarely makes public statements on issues impacting the judiciary. He said it’s not that Roberts isn’t sticking up for judges, but is “careful about the issue that he raises.”

“Understanding how the chief operates, he’s trying to lower the temperature and just see if he can get these initiatives through,” Jones said.

Budget strain

Judges were also warned at Tuesday’s meeting, held two weeks before the end of this fiscal year, that the judiciary is facinga budget shortfall if forced to operate with the same funding next year under a short-term funding extension, according to a judiciary press release.

House spending leaders released language earlier Tuesday that would extend funding levels until late November. The proposed stopgap bill would provide an additional $28 million in funding to protect Supreme Court justices, but no extra money to shore up security for other federal judges.

Judge Amy St. Eve, chair of the Judicial Conference’s budget committee, told reporters the judiciary had requested supplemental funding in the stopgap bill for security, and insufficient funding for this purpose means that courthouse security systems and equipment “will suffer.”

“We have courthouses that have some equipment that’s obsolete that needs to be replaced, that should have been replaced three, four, five years ago. And we just don’t have the funding from our judicial security account to do that,” she said.

St. Eve also told reporters that judiciary officials are “very concerned” about funding lapses for criminal defense lawyers, after the judiciary ran out of money to pay them for representing indigent defendants in July.

Those attorneys will be paid on Oct. 1 once next fiscal year’s funding arrives, St. Eve said, but the court system is on track to run out of funds for them again next fiscal year unless Congress increases its budget.