'Loss of trust': Growing chorus of federal judges speak out against 'out of step' SCOTUS

26 June 2024

Federal judges appointed by both Democratic and Republican presidents are becoming increasingly more vocal in their opposition to the Supreme Court of the United States (SCOTUS).

Multiple judges and legal experts told Newsweek that they have lost confidence in SCOTUS — not just in its ability to objectively interpret how the Constitution should be applied to current legal matters before the Court, but also in its ethical standing. David S. Tatel, an appointee of former President Bill Clinton who served on the DC Circuit U.S. Court of Appeals (the nation's second-highest court) for three decades, wrote in his memoir that he finally retired in January of 2024 due to SCOTUS' "low regard" for traditional jurisprudence.

"My views, I think, are widely shared throughout the judicial system," Tatel told the outlet. "Obviously, there are people who don't agree with them, but there are, I can assure you, a large number of judges who will not find anything I've said in this book surprising."

Conservative judges have also been questioning SCOTUS' legal expertise. J. Michael Luttig, who was appointed to the 4th Circuit U.S. Court of Appeals by former President George H.W. Bush, is an outspoken critic of the Court's six-member conservative majority. After SCOTUS issued a writ of certiorari for former President Donald Trump's claim of absolute criminal immunity, Luttig blasted the Court and said he was "profoundly disturbed" by its partisanship.

"I believe it is now likely either that Trump will get elected and instruct his attorney general to drop the charges, or that the Supreme Court will grant him immunity from prosecution," Luttig told the New Republic's Greg Sargent in April. "The conservative justices’ argument for immunity assumes that Jack Smith’s prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors."

Dan Urman, a law professor at Northeastern University who specializes in the Supreme Court, told the outlet that SCOTUS' poor reception by the nation's best legal minds doesn't bode well for an institution that is wholly dependent on its perceived legitimacy.

"The court is out of step with public opinion in a variety of ways—especially abortion [and] gun rights—and this term, we might see the justices tack back to the middle on these issues, [like] mifepristone and keeping dangerous people from possessing weapons," he said.

SCOTUS is due to finish its current term by the end of the week, with major decisions still pending like Trump's immunity claim, and a January 6 insurrectionist's challenging of the legality of a charge against him for corruptly obstructing an official proceeding. If SCOTUS rules in the plaintiff's favor in that case (Fischer, Joseph W. v. United States), it could strike two of the four charges that Department of Justice special counsel Jack Smith indicted Trump on in the D.C. election interference case.

If SCOTUS upholds the D.C Circuit's prior decision that Trump does not have absolute broad criminal immunity, U.S. District Judge Tanya Chutkan would be free to schedule a trial date for the case, which could be in late September or early October. Alternatively, the Court may end up sending the immunity decision back to the lower courts to answer procedural questions, almost assuredly delaying the case until after the election.

Click here to read Newsweek's article in its entirety.

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