Carole Levine March 4, 2025
The courts, especially the federal courts, are in the news on a daily basis. For the most part, we are seeing the federal courts continue to protect democracy as the Trump administration rapidly issues executive actions that could dismantle much of our government functions. Federal judges are issuing “stays” on some of these actions and letting others move forward. In an article on these judges and the executive orders in Sunday’s New York Times:
“The issues they have dealt with, essentially on the fly, have been mind-bogglingly varied: transgender rights, immigration policy, the status of independent agencies and the inner workings of Elon Musk’s government efficiency body.”
For these efforts and constitutional decisions, many of these judges are facing harassment and being named and targeted. Labels of “Activist Judge” and “anti-Trump” are common. But claims of political bias have not been supported in the reality of what has happened in their courtroom. Many of these judges (especially in the DC circuit) have made decisions that both pleased and angered Trump and his minions… some of these decisions coming from the same judge on different issues. One of the first orders — Trump’s clemency declarations for January 6th felons — has been particularly distressing to many on the judiciary. Judge Beryl A. Howell issued a ruling saying that this action raised “the dangerous specter of future lawless conduct by other poor losers.” This will undermine the rule of law.
The very first order by Mr. Trump that profoundly affected the judges in Washington was his grant of clemency to all of the nearly 1,600 people charged in connection with the attack on the Capitol on Jan. 6, 2021. This declaration, issued on Mr. Trump’s first day back in office, effectively invalidated years of judicial opinions over tough legal questions concerning the appropriateness of certain criminal charges and the challenging process of handing down sentences to individual defendants who moved as part of a mob. This move by Trump changes the entire story of January 6th, raising questions about those who were accused. Were they partisan? Were they corrupt? This clemency decree left many judges angry and offended. They were doing their jobs in these cases, not playing partisan politics.
An issue that looms large on the horizon is the possibility that Trump and his minions may refuse to comply with some of these judicial orders. At this time, most judges are moving cautiously, telling the Administration that it has to comply with judicial orders. What will happen, in response, remains to be seen. The refusal to comply with such orders could be the trigger for a full constitutional crisis. Compliance with judicial orders is still a major question.
The Supreme Court has, thus far, tried to remain outside the fray. They refused to block Trump’s sentencing in the New York hush money trial that found Trump guilty of 34 felony counts of falsifying business records. (The NY judge then sentenced Trump to no punishment.) Last week, the Supreme Court left in place for now an order by a federal judge in Washington, D.C., that instructed President Donald Trump to temporarily reinstate the head of an independent federal agency tasked with protecting whistleblowers from retaliation. We can expect more appeals to the highest court as the lower courts turn down appeals from the Trump administration.
“It’s absolutely extraordinary, just on the numbers of issues being raised,” said Nancy Gertner, a former federal judge who was appointed to the bench by President Bill Clinton. “Then again, Washington is the seat of government. It’s where all of this stuff happens.” It would fall to the U.S. Marshals Service — which is part of the Department of Justice — to enforce a judge’s order. But “if Trump wanted to fully not comply, he could direct the Department of Justice not to comply. At that point, you have a full-on constitutional crisis,” Gertner said.
Expect the federal courts to be slammed with continued legal actions as this Administration continues its efforts to “reform” and downsize the federal government. Court actions are time-consuming and do not result in quick turnarounds in making decisions. Many of the federal courts are moving as quickly as they can, knowing that people’s livelihoods and health and welfare are at stake in their decisions. But we need more than the courts in this battle for democracy and human rights. We need our elected officials to act as well. Courts ultimately have few ways to punish a president for ignoring their rulings, but Congress still exists to intervene. Hanna Hickman, a former staff member at the Consumer Financial Protection Bureau (CFPB) who was recently laid off as part of the large-scale federal government staff cuts stated: “Congress, ultimately, is the arm of our government that enacts statutes. And if the president is claiming authority under a statute to do X and Congress disagrees, Congress can amend the statute and say, you don’t have the power”.
Concern should extend from the courts to ensuring free and fair elections. Everyone should pay attention to a recent executive order that claims to make Trump and Pam Bondi, United States Attorney General, overseeing the US Department of Justice, the final say on legal interpretation across every executive branch agency.
The Federal Election Commission is a six-member bipartisan body that, by law, requires a minimum of four commissioners’ support to adopt any rule or regulation or take enforcement action. Trump has issued an executive order claiming the White House has total power of the Federal Election Commission (FEC), putting the fairness and impartiality of our elections at risk. Lawsuits have been filed challenging Trump’s illegal actions to dictate campaign rules from the White House and undermining Americans’ right to fair elections with impartial referees.
Again, for the most part, judges have ruled to uphold what is in the Constitution and the laws passed by Congress. But the deluge of actions and overreach by this Administration continues, with little concern for the path of destruction they are leaving in their wake. Standing idly by is not an option. It is time to hold our elected official’s feet to the fire and let them know they, not just the courts, must act. Our Senators and Congressmen and women need to hear from us…frequently. They need to know we are watching their actions and that we expect them to act.
Some things to watch for regarding the federal judiciary in the coming month:
- As Trump’s cabinet and administrative appointees are confirmed, he will turn to lifetime federal judicial appointments. There are currently more than 55 vacancies to be filled.
- There will be a need to oppose many of these upcoming nominees. While they may be “qualified” for lifetime appointments, they may also bring the baggage of right-leaning ideology to their courts. Watch for alerts from courts-focused organizations like Courts Matter Illinois and the Alliance for Justice, in order to take action on these nominees.
- The Supreme Court will come into play… most likely sooner rather than later. The US Ninth Circuit Court of Appeals declined to consider a casethat blocked the Trump executive order ending birthright citizenship which is the subject of 10 lawsuits around the country. These judges felt the case did not meet the criteria for an emergency intervention. The DOJ could decide to bring the case directly to the US Supreme Court.
Within our court system, there are avenues for the Trump administration to challenge court decisions. The White House can, and has in prior administrations, appealed to appellate courts and the Supreme Court over lower court decisions that it disagrees with.
That phase of the litigation hasn’t been reached for Trump’s cases according to Blake Emerson, a professor of law and political science at the University of California, Los Angeles. But he indicated that the Trump administration’s reaction to court orders so far suggest that there’s at least some discussion within the Oval Office over the extent of the administration plans to challenge judicial authority. It would fall to the U.S. Marshals Service — which is part of the Department of Justice — to enforce a judge’s order.
We can wring our hands and moan about what is going on, or we can work to avert a “full-on constitutional crisis”. It is imperative that we flood the phones and inboxes of our elected officials, telling them to “Do Your Job!” and stand firm and uphold our rights and the stability of our nation. Anything less, cedes all control to the Executive Branch. The courts will not save us. We, and those we elect to the US House and Senate, are, indeed, the last resort.
