Judges-SCOTUS Strife Has Serious Side Effect: A Weaker Judiciary

In his famous speech on June 16, 1858, accepting the Republican Party’s nomination as candidate for the US Senate—and launching his national political career—Abraham Lincoln quoted the well-known Bible passages in Matthew 12:25, Mark 3:25, and Luke 11:17, “A house divided against itself, cannot stand.”

There is cause for concern that recent critical comments by federal trial judges and the US Supreme Court justices regarding each other’s handling of the Trump administration’s emergency applications reflects a house divided against itself.

At a time when the frequency and tone of attacks against federal judges by elected officials and public figures who disagree with court rulings have reached an alarming level, internecine strife within the judiciary is especially unfortunate, as it has the potential of reinforcing unfounded accusations that judges are acting as partisans, and not as impartial jurists.

Within the past nine months, the lower federal courts have been contending with a tsunami of cases challenging executive orders and policies of the second Trump administration. By one account, there have been more than 170 major cases filed in federal courts challenging the administration’s actions since the beginning of 2025.

Similarly, the Department of Justice has filed more applications for emergency relief from such lower court rulings with the Supreme Court in the first months of President Donald Trump’s second term than were filed during the entirety of President Joe Biden’s administration, or the administrations of Presidents George W. Bush and Barack Obama combined.

These cases have placed an enormous strain on the lower courts, which have been subjected to unprecedented attacks in response to rulings against the administration.

In his order dismissing the lawsuit filed by the DOJ against the entirety of the district judges of the US District Court for the District of Maryland (the court where I sat on the bench), Judge Thomas Cullen (a Trump appointee) observed “over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as ‘left-wing’, ‘liberal’, ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous, [and] unconstitutional,’ ‘[c]rooked’ and worse,” which he characterized as a “concerted effort by the Executive to smear and impugn individual judges who rule against it [which is] both unprecedented and unfortunate.”

While they largely have kept their own counsel regarding outside attacks against them, several federal judges have vented frustration with the Supreme Court for its rulings on emergency applications filed by the DOJ seeking relief from district rulings against the administration.

In early September 2025, 12 federal district judges—appointed by both Democrat and Republican presidents—took the unheard-of step of anonymously speaking to the press, expressing their frustration about rulings by the Supreme Court granting emergency relief to date in 17 of the 23 emergency applications filed by the administration.

These judges complained that the Supreme Court’s orders provided too little explanation for setting aside or staying their rulings, which are based on painstaking legal research. The justices’ quick rejection of their work with little to no explanation makes the lower courts’ work look shoddy, and as if they were biased against Trump, the judges said. And they complained that the Supreme Court should be doing more to defend the integrity of the lower courts’ work.

And two justices on the Supreme Court have expressed their own frustration that some lower court judges haven’t been complying with the rulings of the court on the administration’s emergency applications.

Justice Neil Gorsuch chastised three US district judges for issuing orders that were at odds with the court’s emergency application rulings, saying “lower court judges may sometimes disagree with this court’s decisions but they are never free to defy them.” Justice Brett Kavanaugh joined that concurrence granting emergency relief to the administration.

Perhaps it is understandable why both the district court judges and the justices have expressed their frustration. They are responding to an unprecedented strain placed upon them by the avalanche of litigation filed against the administration’s actions—and the resulting attacks levelled against judges.

In his 2024 year-end report on the state of the federal courts, Chief Justice John Roberts acknowledged the increasing threats against federal judges, and he strongly defended federal judges, the courts, judicial independence, and the vital role of the courts in exercising judicial review. But like it or not, the work of the federal courts will continue to be the subject of scrutiny and criticism in the current environment.

Judges have few, if any, avenues to defend themselves—they are bound by ethics rules that strictly limit what they can say about the cases before them. Fortunately, retired state and federal judges, bar associations, lawyers, academics, and organizations such as The Article III Coalition, the Society for the Rule of Law, and the Bolch Judicial Institute increasingly are speaking against unfair attacks on judges and the judicial system.

Indeed, lawyers have an ethical obligation to defend the judicial system and judges when unfairly attacked—backed by the oath they take when admitted to the bar. It is essential they do so vigorously.

But greater unity within the courts would certainly help the cause. If a divided house is subject to falling, a united one sits upon an enduring foundation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Paul Grimm is professor of law and director of the Bolch Judicial Institute at Duke Law School. From 2012 to 2022, he was a district judge of the US District Court for the District of Maryland. Judge Grimm is a member of the Article III coalition and joined an amicus brief in support of the District of Maryland judges in the Trump administration’s suit against them.

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