Trump Wants to Kick ‘Rogue Activist Judges’ Off Cases. Can He?

“It’s a war, man,” Todd Blanche said a year ago at a convention of conservative lawyers.

Blanche, then the Justice Department’s second-in-command and now the attorney general, was talking about the administration’s attitude toward the “rogue activist judges” who stood in its way.

The battles have only gotten fiercer. In recent weeks alone, the Trump administration has filed three recusal motions and a misconduct complaint aimed at a total of eight judges in Washington and Minnesota.

So can the administration force disfavored judges off its cases? Let’s take a look at what court decisions and ethics opinions have to say.

A Furious Judge

One motion sought to disqualify Judge Ana Reyes for her handling of a case in which she temporarily blocked President Trump’s plan to create a fancy golf course in a Washington park. The Justice Department said she should step away from the dispute because, among other things, she had repeatedly raised her voice while addressing the administration’s lawyers, “blending aggression with systematic disrespect for a coequal branch of government.”

Trump, not exactly modeling the behavior his lawyers sought from Judge Reyes, then proceeded to call her “a crazed lunatic” who “may be insane.”

Judge Reyes, who was appointed by President Joe Biden, denied the motion two days after it was filed. In a 13-page opinion, she said she had not barred the government from taking any actions in the park for the better part of a year, asking only to be notified of changes.

She said she had not expected to be told at 4:55 p.m. on the Friday of a holiday weekend that workers would the next morning begin removing what would turn out to be about 400 trees. That left her “furious” and “beyond disappointed,” she wrote, and she had said as much.

“It is easy to weaponize selective quotations to bring a baseless recusal motion,” she wrote. “But it is much harder to meet the demanding legal standard against a full record.”

Annoyance and Anger Are Allowed

The leading Supreme Court opinion in this area, Liteky v. United States in 1994, made a point that anyone who has spent time in a courtroom knows. Judge sometimes lose their tempers and yell.

“Expressions of impatience, dissatisfaction, annoyance and even anger” are “within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display,” Justice Antonin Scalia wrote for the majority. “A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.”

On the other side of the line, wrote Justice Scalia, who died in 2016, is “such a high degree of favoritism or antagonism as to make fair judgment impossible.”

He added that not all bias is unwarranted. “One would not say, for example,” he wrote, “that world opinion is biased or prejudiced against Adolf Hitler.”

Partisan Remarks or Defending the Rule of Law?

The Justice Department also filed a misconduct complaint and two recusal motions aimed at federal judges in Minnesota who spoke to The New York Times about the immigration enforcement surge there last winter. Judge Patrick Schiltz, for instance, said that the Justice Department had been overwhelmed by litigation following the surge, leading to “a grave threat to the rule of law.”

The complaint said Judge Schiltz, who was appointed by President George W. Bush, had delivered “unethical and partisan commentary concerning matters that are still indisputably pending.”

The ethical standards are different for statements judges make outside court. They may not, ethics rules say, comment on the merits of pending cases, make inappropriately partisan statements or otherwise undermine public confidence in their impartiality.

But judges are allowed to address judicial independence and security and to speak out to defend the rule of law.

In a letter on Monday responding to the Justice Department’s complaint, 174 former judges said the statements the Minnesota judges had made to The Times were proper. “A court that cannot secure compliance with its orders cannot perform its constitutional function,” the letter said, “and a judge who explains that fact is addressing the administration of justice in the most basic sense.”

In response to the complaint, Rebeccah Parks, a spokeswoman for the Federal District Court in Minnesota, said “our judges were acting well within the ethical rules.” As for the recusal motions, she said that “judges are unable to comment on matters currently pending before the court.”

Has the Supreme Court Taken Sides in the War?

The new filings are the next stage of a campaign to portray judges who rule against the government or criticize its litigation tactics “as biased actors whose rulings can and should be discounted,” said Stephen Vladeck, a law professor at Georgetown.

Asked for comment, a Justice Department spokesman pointed me to a statement issued last week in connection with the recusal motions in Minnesota. “A judge who has publicly taken a political side on the issue of enforcing our nation’s immigration laws cannot then preside over a case concerning one of the Justice Department’s key immigration enforcement initiatives,” the statement said.

Vladeck is the author of the annual foreword to the issue of The Harvard Law Review devoted to the last Supreme Court term, which will be published shortly. Most of that long article, “The Court Against the Courts,” is devoted to an assessment of the Supreme Court’s tense and troubled relationship with the lower courts.

But it also addressed the administration’s attacks on federal trial judges.

“The Supreme Court isn’t responsible for that campaign, but it has made it much easier for the Trump administration to wage it,” Vladeck told me. “It has said nothing about executive defiance of lower courts or the other attacks we’ve seen on the federal judiciary.”

Indeed, he added, the justices are more apt to chastise lower-court judges for failing to divine the meaning of their cryptic emergency orders favoring Trump than to defend their colleagues from the administration’s declaration of war.

A Busy Week for Trump’s Retribution Campaign

What I’m Reading

Mailbag

Public Records Behind a Paywall

This week’s question concerns federal court records, which are available on an expensive service called PACER (that is, Public Access to Court Electronic Records).

It seems long since past due that PACER should be a free resource. At one time there seemed to be a push to allow access without charge. That effort seems to have stalled. Can you update readers of the newsletter? — Jim Dale

The push for free access to what are, after all, public records has not only stalled, but is moving in the wrong direction. The federal courts’ administrative office announced in June that it would impose “a modest temporary increase” in fees, raising them to 12 cents a page from the current dime.

By one estimate, the technology exists to drive the actual cost of retrieving court documents to essentially zero — about one half of one ten-thousandth of a penny per page. That helps explains how, according to that announcement, PACER generates $147 million a year.

The new rate starts in January and is scheduled to last for five years.

The judiciary says the money is needed to modernize and protect the database, which was hacked in 2020 and 2025. Even as it raised the per-page fee, it expanded exemptions for light users and maintained some caps. Judicial opinions remain free.

There have been bipartisan efforts in Congress over the years to remove PACER’s paywall, but they have yet to yield results.

The Supreme Court has taken a different approach from the rest of the federal judiciary. Where PACER is clunky and costly, its website is sleek and free.

I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].

Closing Argument

Death Penalty Do-Overs

The botched attempt to execute Christa Pike in Tennessee last month made me wonder what the Supreme Court had said about repeated attempts to put a condemned prisoner to death.

After Pike survived two doses of a drug meant to kill her, she was hospitalized, having sustained traumatic injuries. She is back in prison, awaiting word on whether the state will try again.

The Supreme Court has only once addressed whether trying multiple times to execute prisoners offends the Constitution. It was in 1947, in the case of a Black youth named Willie Francis, who was convicted by a jury of 12 white men of murdering a white pharmacist in Louisiana.

The electric chair meant to kill Francis failed, though not before subjecting him to what witnesses said was intense pain.

When the case reached the Supreme Court, five justices said a second attempt was permissible. Justice Harold Burton, writing for the four dissenters, seemed incredulous. “Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man,” he wrote.

Justice Felix Frankfurter voted with the majority but added a concurrence. “This court must abstain from interference with state action no matter how strong one’s personal feeling of revulsion against a state’s insistence on its pound of flesh,” he wrote.

Francis was represented by J. Skelly Wright, who would go on to be a distinguished judge on the D.C. Circuit. He was, one of his former law clerks wrote recently, “one of the heroic cadre of Southern judges who desegregated all-Black schools after Brown v. Board of Education.”

That former clerk, Greg Diskant, also described an extraordinary postscript in the Francis case. “Without telling his brethren on the Supreme Court (except for Justice Burton), Frankfurter began a remarkable, extrajudicial lobbying campaign on behalf of Willie Francis,” Diskant wrote, drawing on a law review article and a book. “He enlisted his Harvard classmate, a Louisiana lawyer named Monte Lemann, on a ‘strictly confidential’ basis to seek clemency for Francis from the governor.”

The effort failed.

“Not terribly surprisingly, Gov. Jimmie Davis declined to exercise clemency for a Black man convicted of killing a white man in Jim Crow Louisiana,” Diskant wrote. Francis was electrocuted on May 9, 1947, about four months after the Supreme Court ruled.

A 1982 article in The DePaul Law Review was harshly critical of Justice Frankfurter.

“Frankfurter’s attempt to gain clemency for Willie Francis,” the article said, “can only be recognized for what it was: a pitiful attempt by a jurist to assuage his conscience for allowing a youth to be put to death in the name of abstract principles of federalism.”

Please send me your comments on judicial ethics, public records, the death penalty or anything else at [email protected]. See you next week. — Adam