[Senate Hearing 119-174]
[From the U.S. Government Publishing Office]
S. Hrg. 119-174
THE SUPPOSEDLY ``LEAST DANGEROUS BRANCH'':
DISTRICT JUDGES V. TRUMP
JOINT SUBCOMMITTEE HEARING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL COURTS,
OVERSIGHT, AGENCY ACTION,
AND FEDERAL RIGHTS
AND THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
JUNE 3, 2025
__________
Serial No. J-119-21
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
61-716 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
JOSH HAWLEY, Missouri CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
MARSHA BLACKBURN, Tennessee CORY A. BOOKER, New Jersey
ERIC SCHMITT, Missouri ALEX PADILLA, California
KATIE BOYD BRITT, Alabama PETER WELCH, Vermont
ASHLEY MOODY, Florida ADAM B. SCHIFF, California
Kolan Davis, Chief Counsel and Staff Director
Joe Zogby, Democratic Chief Counsel and Staff Director
Subcommittee on Federal Courts, Oversight,
Agency Action, and Federal Rights
TED CRUZ, Texas, Chair
LINDSEY O. GRAHAM, South Carolina SHELDON WHITEHOUSE, Rhode Island,
MICHAEL S. LEE, Utah Ranking Member
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
ERIC SCHMITT, Missouri ALEX PADILLA, California
PETER WELCH, Vermont
Michael Berry, Republican Chief Counsel
Claire Kim, Democratic Chief Counsel
Subcommittee on the Constitution
ERIC SCHMITT, Missouri, Chair
JOHN CORNYN, Texas PETER WELCH, Vermont,
MICHAEL S. LEE, Utah Ranking Member
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JOSH HAWLEY, Missouri MAZIE K. HIRONO, Hawaii
JOHN KENNEDY, Louisiana CORY A. BOOKER, New Jersey
MARSHA BLACKBURN, Tennessee ALEX PADILLA, California
ADAM B. SCHIFF, California
Ethan Harper, Republican Chief Counsel
Ryan Ferguson, Democratic Chief Counsel
C O N T E N T S
----------
OPENING STATEMENTS
Page
Grassley, Hon. Charles E.
Prepared statement........................................... 44
Durbin, Hon. Richard J........................................... 8
Cruz, Hon. Ted................................................... 1
Schmitt, Hon. Eric............................................... 4
Whitehouse, Hon. Sheldon......................................... 3
Welch, Hon. Peter................................................ 6
WITNESSES
Alicea, J. Joel.................................................. 17
Prepared statement........................................... 49
Responses to written questions............................... 65
Blackman, Josh................................................... 14
Prepared statement........................................... 52
Responses to written questions............................... 69
Shaw, Kate....................................................... 15
Prepared statement........................................... 56
Responses to written questions............................... 74
APPENDIX
Items submitted for the record................................... 79
THE SUPPOSEDLY
``LEAST DANGEROUS BRANCH'':
DISTRICT JUDGES V. TRUMP
----------
TUESDAY, JUNE 3, 2025
United States Senate,
Subcommittee on Federal Courts, Oversight,
Agency Action, and Federal Rights, joint with the,
Subcommittee on The Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittees met, pursuant to notice, at 2:36 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Ted Cruz, Chair
of the Subcommittee on Federal Courts, Oversight, Agency
Action, and Federal Rights, and Hon. Eric Schmitt, Chair of the
Subcommittee on The Constitution, presiding.
Present: Senators Cruz, Schmitt [presiding], Whitehouse,
Welch, Hawley, Kennedy, Blackburn, Blumenthal, Hirono, Booker,
and Schiff.
Also present: Senator Durbin.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Chair Cruz. Good afternoon. I hereby call to order this
hearing on ``The Supposedly `Least Dangerous Branch': District
Judges v. Donald J. Trump.'' This hearing is a joint
undertaking by the Subcommittee on The Constitution and the
Subcommittee on Federal Courts because our country is facing a
constitutional crisis, a full-blown judicial assault on the
separation of powers that strikes at the very foundation of the
republic.
What we are witnessing is the rise of judicial lawfare from
the bench. One unelected district judge sitting in a courtroom
in San Francisco or Boston or Baltimore can now issue a
nationwide injunction that ties the hands of the President of
the United States for all 330 million Americans. That is not
law; that is judicial tyranny.
President Donald Trump was elected by over 77 million
Americans with a constitutional mandate to govern. These
district judges, they were not elected. They were appointed by
one individual and confirmed not to legislate, not to govern,
but to apply the law. And yet, far too many of them have
abandoned that role. They've have stepped off the bench and
into the political arena, issuing sweeping edicts that impose
their policy preferences on 340 million Americans.
Let's walk through just a few of the most egregious recent
examples. Economic policy: In New York City, the Court of
International Trade struck down all of President Trump's
tariffs under IEEPA, declaring that they exceeded executive
authority. It was not judging; it was judges replacing the
President's judgment on declaring a national emergency. And, of
course, that ruling was almost immediately stayed by the court
of appeals.
Deportation policy: In Baltimore, the chief judge for the
District Court of Maryland issued an order preventing the
removal of illegal aliens detained anywhere in the country,
granting 2 days of automatic protection to anyone who files a
habeas petition in Maryland, all without a hearing or legal
findings. This single Maryland judge dictated national
deportation policy and then tried to claw back the damage by
amending the order. As Chairman of the Subcommittee on Federal
Courts, I am investigating this overreach, and I have sent a
letter to the Judicial Conference of the United States.
But the judges did not stop there. In D.C., a judge blocked
the Federal Government from requiring proof of citizenship to
vote, overriding election integrity laws across all 50 States.
In Boston, a judge weighed in on birthright citizenship,
deciding a question of nationwide consequence for millions of
illegal aliens, despite the plaintiffs being solely one
pregnant mother and two nonprofit organizations. That is
absurd. That is policymaking and legislating. That is not
adjudication.
In Boston, a different judge blocked a Department of Energy
rate cap, handcuffing efforts to lower taxpayer costs for
energy research.
In Rhode Island, a judge ordered the Federal Government to
immediately disburse tens of millions of dollars under the
Inflation Reduction Act and other programs. The Department of
Energy alone was forced to release $50 million by judicial
fiat.
In San Francisco, a judge mandated that the Office of
Personnel Management rehire all terminated Federal workers and
restricted future firings, effectively turning the judiciary
into an H.R. department.
Yet another Maryland judge halted orders intending to stop
funding for institutions mutilating minors through so-called
gender transitions. These deeply consequential decisions were
blocked, not by voters, not by Congress, but in each instance
by one unelected judge.
And it doesn't stop there. Since President Trump returned
to office in January, there have been over 40 universal
injunctions issued against the Federal Government. That is in 4
months. Thirty-five of those 40 came from the same 5 judicial
districts. Let's put this into context. In the first 150 years
of the republic, zero nationwide injunctions were issued. Zero.
That is for 150 years. In the entirety of the 20th century, 27
nationwide injunctions were issued. That is over 100 years
[points at poster].
[Poster is displayed.]
Under Presidents Bush, Obama, and Biden combined, 32
nationwide injunctions. Under President Trump's first term, 4
years, 64 nationwide injunctions, and now in just 4 months, we
are already over 40. In 4 months, the Trump administration has
seen more nationwide injunctions than the entirety of the 20th
century and more nationwide injunctions than Presidents George
W. Bush, Barack Obama, and Joe Biden combined. This is not
normal. This is not justice. This is an orchestrated campaign
of judicial obstruction.
[Poster is displayed.]
Joe Biden, when he was President, nominated to the bench
radicals. I have said only slightly tongue-in-cheek that Joe
Biden did something I used to think was impossible. He made me
miss Barack Obama. But by comparison, the Biden judicial
nominees were far more extreme and radical than they were under
Obama. They sought out radicals who would implement
policymaking from the bench, and they are doing precisely that.
That is not democracy, and that is not our Constitution.
This hearing is to highlight the effects of this judicial
tyranny, of single judges deciding they know better when it
comes to policy than do the voters of America. We need to
defend democracy.
And with that, I recognize Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Senator Cruz.
When I Chaired the Subcommittee on Federal Courts, we held
hearings on the influence on our judiciary of dark money from
the fossil fuel industry and from creepy billionaires. My
Republican colleagues weren't interested in helping solve that
problem, but those hearings were based on facts. Years of
financial disclosures showed a secret billionaire gifts program
for amenable Supreme Court justices. Written evidence suggested
a justice may have failed to pay taxes on a $270,000 loan that
was forgiven, and that false statements were made about a
yacht. A mountain of evidence revealed President Trump
outsourced to billionaires and their dark money fixer, Leonard
Leo, the selection of his judges and Supreme Court justices,
which President Trump admitted just last week. Apparently, Leo
also, and I am quoting Trump here, ``openly brags'' about
controlling the judges his creepy billionaires got appointed.
This hearing will be different. A lot of hypocrisy about
nationwide injunctions against the Trump administration after
Republican colleagues cheered the nationwide injunctions that
courts issued against the Biden administration. Indeed, some
colleagues filed lawsuits asking for nationwide injunctions
against the Biden administration, but now they are shocked,
shocked that there are nationwide injunctions.
Here are some facts everyone should bear in mind during
this hearing. Fact number one, Donald Trump's administration is
engaged in unprecedented lawlessness, period. In less than 5
months, President Trump has issued almost as many Executive
orders as President Biden did during 4 years in office. Many
are flat out on their face illegal, as any first-year law
student could tell you.
Trump tried to end 14th Amendment birth rights citizenship.
He tried to punish law firms' First Amendment rights to
associate with his perceived political enemies. His fossil fuel
minion at OMB, Russ Vought, withheld millions of dollars that
Congress had appropriated under Article I. More than 20 years
ago, originalist icon Scalia wrote about how illegal that is.
The madcap pace and roughshod lawlessness of Trump's
executive actions mean district judges across the country are
striking them down, not because of judicial obstruction,
because he is breaking the law. Hearings like this prop up a
narrative that bad courts are stopping dear leader Donald Trump
because some cabal of Democratic judges is out to get him.
Wrong. The reality is much simpler. He is breaking the law and
doing it a lot, and judges are doing their job.
It is not just me saying that. Trump-appointed judges from
across the country have struck down his illegal actions,
holding, for instance, that Trump can't punish the AP for its
reporting, that his misuse of the Alien Enemies Act is illegal,
and that the administration can't withhold billions of
appropriated public health funds. Trump judges, hardly a
liberal conspiracy.
As it tries to prop up Trump's illegal orders, the MAGA
Justice Department is fast destroying its reputation with
judges who've have said about DOJ arguments, ``bad faith,''
``shoddy,'' ``an admitted lack of any evidence whatsoever,''
``deliberate evasion,'' shocking not only to judges but to the
intuitive sense of liberty that Americans far removed from
courthouses still hold dear. And the prospect of contempt
findings looms.
Fact number two, failing in court, Donald Trump and his
allies attack judges and their families. Trump has called
judges who ruled against him communists, USA-hating, and
monsters. A Republican in Congress put up a wanted poster with
judges' faces outside his office. Elon Musk and Laura Loomer
have used X to fire up the right wing's flying monkeys about
judges, even adding photos of family members in a seemingly
coordinated campaign to harass and intimidate.
A test is coming of MAGA Attorney General Bondi. Will she
let the Marshals Service investigate these threats and their
orchestration? There is plenty of predication to look into
conspiracy, aiding and abetting, or RICO enterprise liability.
Will she let them?
Which brings me to fact number three. In a 6-week period
from March through April, 162 judges received threats to
themselves or family members of harassment or violence, 162. A
pattern was evident. Many had ruled against Trump and then were
targeted. The latest tactic is a campaign to send pizzas to
judges or family members' homes using the name of the murdered
son of a Federal judge. It is not clear yet who is behind that
campaign, but it is not hard to figure out the message. Stop
ruling against Trump or else.
These attacks have gotten so bad that the Chief Justice
issued a statement and the Judicial Conference formed a
Judicial Security and Independence Task Force. Now I would like
to see some sign that the threats are being duly investigated.
To the extent that this hearing encourages that animus further,
it is deeply regrettable.
Chair Cruz. I thank Senator Whitehouse and now recognize
Chairman Schmitt.
OPENING STATEMENT OF HON. ERIC SCHMITT,
A U.S. SENATOR FROM THE STATE OF MISSOURI
Chair Schmitt. Thank you. Thank you, Senator Cruz. As
Chairman of the Subcommittee of the Constitution, I am glad
that we have convened this hearing.
Universal injunctions effectively didn't happen for the
first 200 years of our Constitution, yet they become a fixture
in our legal system in the last 20, especially when Donald
Trump occupies the White House. The courts can play an
important role in reining in an executive branch that is out of
control. This is especially important when reining in actions
by unelected, unaccountable bureaucrats who act outside of the
scope of their congressionally authorized authority.
But what happens when Article III has no limits? As listed
in the hearing's title, Alexander Hamilton called the Judiciary
the ``least dangerous branch'' in Federalist 78. And
historically, in Federalist 78, historicals was responding to
the Anti-Federalist Brutus, who was raising the alarm bell over
the seemingly unchecked power of Article III to subvert the
will of the people and the rights of citizens.
Hamilton responded that judges will be forced to behave
because nothing guarantees that their orders are enacted.
Judges can't raise an army. They can't collect taxes or duties.
As Hamilton said, the Judiciary must ultimately depend on the
aid of the Executive branch to enforce its judgments. To date,
the Trump administration has followed every court order,
enforced every judgment. It is no one's desire to put
Hamilton's theory into practice.
That is why this hearing is so important. We are not a
juristocracy. We do not want the Judiciary to subjugate itself.
We want to keep it from subjugating others. I agree with
Hamilton that there is no liberty if the power of judging is
not separated from the legislative and Executive powers. But
this runs both ways. There can be no Democratic accountability,
no Republican government with an overly activist judiciary that
allows over 600 judges to wield limitless power.
One particularly troubling example, district court judges
have not been assigned cases randomly or transparently. In
March, Chief Justice Boasberg, right here in D.C., has found
himself into four major Trump cases, a statistical
impossibility. Boasberg took over the Alien Enemies Act and
ordered planes to be turned around in the dead of night,
despite not being the emergency judge on duty that night. It
seems clear that, as chief judge, he has play and he wants to
be able to grab cases for himself.
I have had firsthand experience with this non-random case
assignment in our Federal appellate court system. When I was
attorney general in Missouri, I often found myself litigating
in the Eighth Circuit, a circuit of unique makeup. Of the 11
judges in the circuit, 10 had been appointed by Republicans.
Yet, the one Democrat appointee, Judge Jane Kelly, found
herself hearing nearly every political sensitive case in the
circuit. Time after time, case after case, miracle after
miracle, for the Democrats, Judge Kelly would be there for
nearly every politically sensitive case.
This was not due to the good luck of Judge Kelly. The
circuit clerk's office, which assigned cases to appellate
panels, was filled with her former clerks and ideological
compatriots. In practice, they set the nationwide policy by
rigging case assignment.
Another issue is the universal injunction is a judicially
created remedy while Congress set up a procedure for group
relief under Rule 23. As Solicitor General John Sauer recently
argued compellingly, the proper avenue for group relief is
under Rule 23 class actions. Rule 23 was designed to ensure a
structured and fair approach to broad legal challenges. I am
hopeful that the Supreme Court will curb injunctions to restore
proper judicial limits and respect the separation of powers. A
district court or district judge blocking deportations is as
absurd as directing military strategy. This is activism, not
judgment, not the rule of law, and it undermines the voters'
mandate to secure our borders.
Enough is enough. We must act here in the Senate to fix
these issues. Article I isn't alone in this. The Judicial
Conference and the Supreme Court must get their houses in order
as well. Does our Constitution establish a judiciary that
resolves cases or sets policy? In this Committee, do we confirm
judges to take the bench or to take the podium? The Founders
clearly intended the former. It is time for a reset.
The American people elected President Trump to secure our
border and restore our Nation. I look forward to the testimony
of the professors, and I urge this Committee to advance reforms
that uphold the separation of powers.
Chair Cruz. Thank you. I now recognize Ranking Member
Welch.
OPENING STATEMENT OF HON. PETER WELCH,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Welch. Thank you very much.
You know, the concrete issues of a universal injunction or
forum shopping are things that we can address, but there is a
context that we are all operating in, and this is where I
disagree with my colleagues, particularly Senator Cruz and his
recitation of what he saw as a judicial rampage. This moment we
are in in our country is testing whether the separation of
powers, three co-equal branches of government, shall endure.
That is really the question.
We have seen an abdication of constitutional responsibility
by the Congress. It is appalling. Ceding to a President the
ability to impound funds, something that was declared
unconstitutional in the Nixon doctrine; ceding to the President
tariff authority, which in the Constitution belongs to the
policymakers in Congress, just two examples of Congress ceding
its constitutional authority. That's done willingly by my
colleagues in the House and some in the Senate. We should
reassert our authority.
But the second leg of that, the transfer of authority to
the Executive, is the rampant attack on the judiciary. And
Senator Cruz gave some examples of what he thought was judicial
overreach. Each one of those examples, as I see it, was the
judges doing their job. They disagreed. And when they
disagreed, it was asserted by the President and by the Attorney
General that they were monsters, they were renegades, they were
out of control. It was an ad hominem attack because judges were
doing their jobs.
And I will say we can deal with the forum shopping, which
is something the private bar gets involved in. We can deal with
universal injunctions. But the all-out assault on judges
because they make decisions, which is the job they have to do.
And the decision is, has a President exceeded his authority?
The decision is, has the Congress passed a law that deviates
from constitutional requirements?
Those are so profoundly important to keep that separation
of powers and to keep the competition between the three
branches so that we don't have absolute power vested in a
single person, and that is the Chief Executive.
So when Senator Cruz, you talk about a judge making this
decision about keeping somebody here, it is called due process.
I am for due process. When we talk about judges striking down
under the international trade agreement, whether the President
has authority to set these tariffs, and it is a three-judge
decision, one appointed by Trump, one appointed by Obama, one
appointed by Reagan, and they say the President didn't have
authority, I would say that is the judges doing their jobs.
But what is most profoundly important for the well-being of
our country is that the Congress reassert its authority to pass
laws to restrict the Executive or to empower the Executive, but
not to cede our authority to the Executive ever. And it is our
responsibility to do every single thing we can to validate the
legitimate exercise of the decisionmaking authority of the
judiciary.
I look forward to this hearing and the testimony of the
witnesses. Thank you.
Chair Cruz. Thank you. I would make two brief observations.
Number one, it is interesting, as our Democrat colleagues
defend these nationwide injunctions, that neither of them made
any reference to the fact that the number of nationwide
injunctions issued in the first 4 months is greater than the
entire 20th century and is greater than all of the nationwide
injunctions issued against Bush, Obama, and Biden combined, nor
did they address the disturbing fact that of the 40 universal
injunctions that have been issued in the last 4 months, 35 of
them came from the same five judicial districts.
There is a reason for this. Blue State attorneys general
and radical leftist groups are seeking out affirmatively
radical judges who they know will impose their own policy
preferences. If it were simply, as our Democrat colleagues
said, judges following the law, then you wouldn't have to keep
going to the same radical judges over and over and over again
because judges across the board should do that. But the
litigants know exactly who the zealots are that are on the
bench, and that is who they are seeking out.
I will also point out that the discussion about the urgency
of protecting the safety of judges, listen, I agree. We should
protect the safety of every Federal judge, but it is
interesting because my Democrat colleagues were utterly silent
during 4 years of the Biden administration when you had violent
mobs outside the homes of Supreme Court justices, unhappy with
the Supreme Court's ruling in Dobbs, and the Biden Justice
Department refused to enforce Federal law and protect the
justices. And my Democrat colleagues were perfectly happy with
Supreme Court justices being threatened if they disliked the
rulings that were coming from the Supreme Court justices.
Unlike my colleagues, I believe we should protect judges.
Regardless of whether I agree with them or not, we should
protect their safety. And every time you hear a Democrat
Senator talk about protecting judges from acts of violence, you
ought to ask them, why did they not have a word to say about
the Biden Justice Department allowing mobs to threaten the
families and children of Supreme Court justices night after
night after night while Biden's attorney general refused to
follow the law?
And with that, I will recognize the Ranking Member of the
Full Committee, Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Senator Cruz.
They asked Winston Churchill after World War II how he
thought history would treat him and his conduct of the war. He
said, ``I am not worried about it because I plan on writing
that history,'' which he did.
Today, we see an example of revisionist history from the
Chairman, the statement he just made about concern over the
safety of Federal judges. I cannot remember a single instance
of what he just described, not one, when there were protests
and demonstrations before the homes of judges, regardless of
who appointed them, Republican or Democrat. Our feeling was
they were all entitled to a guarantee of safety to the best of
our ability. And that is what I did as Chairman of this
Committee, and I believe I spoke for the Democrats in that
approach.
The title of this hearing says a lot in full, ``The
Supposedly `Least Dangerous Branch': District Judges v.
Trump.'' The idea being pushed by my Republican colleagues is
not only that the judicial branch and district judges are
dangerous, but they are dangerous for the plain and simple
reason that some judges have had the audacity to rule against
President Trump. When the Chairman from Texas starts talking
about the number of times they have been ruling by the court, I
have three words for him, flood the zone, flood the zone.
When Steve Bannon was asked, what is the policy, what is
the strategy of the new Trump administration? We are going to
flood the zone, and they did. More Executive orders issued by
this President in the beginning of his Presidency than any
President in history, leading to more court challenges than any
President in history. It seems pretty logical to me.
By framing the hearing as they have, my Republican
colleagues have shown their hand. This hearing is not really
about policy or legal issues. Instead, it is about challenging
the authority and legitimacy of the judiciary. They are showing
their undying loyalty to their leader, the President.
This hearing is merely the latest episode in an ongoing
effort by President Trump and his allies to undermine the
judiciary and intimidate judges who dare to rule against them.
In March, the President demanded the impeachment of a Federal
judge simply because he ruled against his administration,
calling him quote, and I quote--I want you to hear these
words--``a radical left lunatic, a troublemaker, and
agitator.'' In May, President Trump referred to judges who
ruled against his administration as ``communist radical left
judges.'' Two days ago, the President posted, ``If the courts
somehow rule against us on tariffs, which is not expected, that
would allow other countries to hold our Nation hostage with
their anti-American tariffs that they would use against us.
That would mean the economic ruination of the United States of
America.''
These statements that I have just read are not normal. It
is difficult to imagine either President Bush, President Obama,
or President Biden using such unhinged, bombastic, and childish
language or calling for the impeachment of a judge simply
because that judge ruled against his administration. The reason
it is difficult is because Obama, Biden never did anything like
this. But imagine if they had and how Congressional Republicans
would have responded. They would have shouted about it from the
rooftops, posted furiously on social media, and the only person
they would have considered impeaching would have been the
President himself.
But because this President is a Republican, because the
President and his allies go after anyone who dares to speak up,
because fear of political retribution is now at the core of
this MAGA world, my Republican colleagues have been silent as
the President has made the statements he has about judges.
Instead of rushing to defend the judiciary and our system of
government, they are rushing to defend the President.
While my colleagues on the other side may try to make it
appear as though decisions of district courts against the
President are somehow dangerous, in reality, it is the attacks
on the judiciary itself that are dangerous to both the rule of
law and to the actual judges themselves. I could go through
chapter and verse of Federal judges who have been intimidated
physically. In fact, deaths have occurred in the Northern
District of Illinois. One of my judges, she is now retired,
lost her husband and her mother to a litigant who attacked her
at her home. It is serious.
I don't think it is a mere coincidence this spike in
violence against judges coincided with increasingly harsh
rhetoric against the same judges and the President's personal
call for the impeachment of a Federal judge on March 18. Some
judges and family members have received threats in the form of
hundreds of anonymous pizza deliveries to their home. Pizza
deliveries? These deliveries are an effort to demonstrate that
those seeking to intimidate a targeted judge know exactly where
those judges live.
Nearly a month ago, I sent a letter--a month ago, a letter
to the Attorney General Bondi and FBI Director Patel asking
them to investigate this effort with the pizza deliveries and
other threats against Federal judges and to provide information
on steps they are taking to protect those judges and their
families. I did not designate just Democratic-appointed judges
or Republican-appointed judges, but all judges. Showing the
priorities of this administration, I am sorry to say, I have
yet to receive a response from either the attorney general or
the director of the FBI.
In the meantime, I ask my Republican colleagues to join me.
Let us recognize that violence begets violence. Threats of
violence, whether from the right or left of the political
spectrum, are never, never acceptable. People are welcome to
debate the merits of any particular judicial decision, but we
cannot condone personal attacks and threats against judges who
rule against this administration, and we can't allow partisan
politics or the latest outrage from the President to undermine
the judicial branch in our constitutional order. I yield.
Senator Booker. Mr. Chairman, would you indulge me for a
moment?
Chair Cruz. We indulge you every moment.
Senator Booker. I appreciate that act of generosity.
It is just something you said that I think is actually
dangerous and should be addressed, and you are welcome. But
when Judge Daniel Anderl was killed in New Jersey, the
Republican colleagues in the Senate, their outpouring of
support, their outpouring of concern, their willing to work
together on a bipartisan bill was extraordinary. It shows the
truth of this institution that, despite some of the fiery
rhetoric that you were sowing, we are really working in
bipartisanship.
Cornyn and Coons, after the incidents you are talking
about, got together and actually passed a bill to better
protect our Supreme Court justices, many of whom are friends of
ours. You know, Gorsuch and I disagree on a lot of stuff. I
knew his wife before he did. We studied together at Oxford.
This implication that there was silence when there were threats
on their people's houses is absolutely absurd. I remember the
rhetoric and the comments, the concern from Coons. I actually
distinctly remember you, Chairman, more than once condemning
those attacks on Republican-appointed jurists.
To say things like that feeds just the partisanship in this
institution and feeds the fiery rhetoric, and it is just plain
not true. It is just plain not true. And I think you know that,
but we can pull from the record from my colleagues in real
time, literally days afterwards, condemning it.
There is a lot of substantive things to say here, but to
think that the lack of humanity when people's homes are being
threatened was not in existence, I think that is unfair and
really concerns me that you would say that in the way that you
did.
Chair Cruz. Well, I thank my colleague from New Jersey.
I will note, as John Adams observed, that facts are
stubborn things. And it is existing Federal law, 18 USC Section
1507, that makes it a crime to protest at a judge's home. And
the law provides, ``Whoever, with the intent of interfering
with, obstructing, or impeding the administration of justice,
or with the intent of influencing any judge, juror, witness, or
court officer, in the discharge of his duty, pickets or parades
in or near a building housing a court of the United States, in
or near a building or residence occupied or used by such judge,
juror, witness, or court officer, or with such intent uses any
sound-truck or similar device or resorts to any other
demonstration in or near any such building or residence, shall
be fined under this title or imprisoned not more than 1 year,
or both.'' That is Federal criminal law.
Night after night after night, angry mobs were outside the
Supreme Court justices' homes. And in the entire course of it,
the Biden Justice Department prosecuted nobody. We had the
attorney general sitting at that table and multiple Republican
Senators asked him, why are you not enforcing the law? What
they are doing is a crime. And my friend from New Jersey said,
``It is a lie to say we, the Democrats, condone this.'' I would
challenge, my friend, find a single Democrat Senator on this
Committee holding the Attorney General to account for not
enforcing this law. I was here at those hearings, and I do not
recall a single Democrat Senator saying to the Attorney
General, you should arrest these people who are violating the
law, you should protect the judges.
I agree that there was general language against violence,
but not a single Democrat Senator that I ever saw in this
Committee was willing to hold Attorney General Merrick Garland
to account for flagrantly disregarding the Federal criminal law
because the Biden administration agreed with the protesters and
I think wanted those justices harassed at their home.
Senator Booker. Mr. Chairman, I really appreciate that you
have now shifted the accusation you made earlier. Your
accusation was that we were silent in the face of protests at
Supreme Court justices' homes. Again, we joined together in a
bipartisan way, not only to condemn that, but to pass
legislation to extend round-the-clock security protection,
literally days. It was introduced May 5, passed the Senate in a
bipartisan fashion on May 9. So if you are saying that we
didn't criticize Merrick Garland----
Chair Cruz. Did the Biden DOJ arrest a single person under
this law?
Senator Booker. Sir, you are now changing----
Chair Cruz. No, that is what I said.
Senator Booker [continuing]. The accusation that you made--
--
Chair Cruz. That is what I said.
Senator Booker. Again, I will pull the record.
Chair Cruz. Did the Biden DOJ arrest even one?
Senator Booker. Again----
Chair Cruz. The answer is no.
Senator Booker. My point to you is the accusation that the
Democrats on this Committee do not care about the safety----
Chair Cruz. All right. So let me ask you this----
Senator Booker [continuing]. Of Federal judges----
Chair Cruz. Should the Biden DOJ----
Senator Booker. I did not interrupt you, sir. I would
appreciate if you let me finish. I am sick and tired of hearing
the kind of heated partisan rhetoric, which is one of the
reasons why we have such divisions in this country. The attacks
we see from the President of the United States of America
trolling and dragging judges through is what we should be
talking about that puts people in danger.
I am simply taking issue with the claim that you made at
the top that people on the Democratic side of the aisle do not
care about the safety and the security of judges and said
nothing. You said we were silent after people's houses were
protested. That is a patent lie, sir. We were not silent. We
took action. We joined in a bipartisan way to protect those
judges, as was done in a bipartisan way to protect a New Jersey
judge after their horrific attack at their home.
So I see you now trying to shift the debate to whether we
talk to an Attorney General. I am simply taking issue with this
accusation that somehow we Democrats are so bad because we
don't call out threats to our judicial colleagues. And that is
wrong. You could change the argument now that you want, but
what you said was patently not true and was, in fact, a patent
lie.
Chair Cruz. So I do enjoy the fact that my colleague from
New Jersey raises his voice and says it is a patent lie and
says he is doing so in defense of lowering the rhetoric. There
is some irony to doing those two together.
I'll point out that in the entire course of those remarks,
Senator Booker did not dispute the central point I made, which
is the Biden Justice Department arrested zero people,
prosecuted zero people for violating the criminal law, and
every Democrat Senator on this Committee was silent about it.
And this was an ongoing pattern for months.
And I would note also that the Senator from New Jersey
clutched his pearls about language threatening judges, and yet
I do not recall a single Democrat Senator of this Committee
saying a word when Chuck Schumer went to the steps of the
Supreme Court and threatened the safety of the Supreme Court
justices by name, Gorsuch and Kavanaugh, and he said, ``You
have unleashed the whirlwind, and you will pay the price.'' And
not a single Democrat Senator had a word to say about this. And
so their outrage is selective.
And I will give my colleague from New Jersey a chance to
just answer a simple yes-no question. Should the Biden Justice
Department have enforced the criminal law against protesting at
a justice's home, yes or no?
Senator Booker. So the rank hypocrisy of Chuck Schumer
apologizing the next day and you holding that standard for him
and not for your President, who you actually rightfully
described when you were running against him in a primary, I
would love to run those tapes of how you perfectly talked about
the danger of our President and his rhetoric. But now you are
failing--in fact blind to the very things you are accusing
Chuck Schumer of. I don't think Donald Trump would know an
apology if it hit him in the head. Never has said apologizing.
So again, you are very, very--sir, very, very deep into the
waters of hypocrisy in your criticisms of Chuck Schumer.
Chair Cruz. So let the record reflect that Spartacus did
not answer the question and did not tell us whether the
criminal law should be enforced because he knows the answer is
yes, and he knows that the Biden Department of Justice was
being wildly political and partisan in refusing to enforce the
law because they disagreed with the Supreme Court justices'
rulings.
I have and also in addition to Senator Durbin, who has
given his opening statement, I have a written opening statement
from Chairman Grassley. Without objection, that written
statement is entered into the record.
[The information appears as a submission for the record.]
Chair Cruz. And I will now briefly introduce our
distinguished witnesses. We have three.
Our first witness is Professor Josh Blackman, who holds the
Centennial Chair of Constitutional Law at South Texas College
of Law in my hometown of Houston, Texas, where he has been
teaching since 2012. And although Professor Blackman was born
and grew up in Staten Island, he got to Texas as fast as he
could. And both of his daughters are proud native-born Texans,
and I commend you for that.
He is one of the country's leading voices on constitutional
law. He has testified before Congress. He is a frequent voice
in The New York Times, The Wall Street Journal, The Washington
Post. He, in 2024, was named the Jurist of the Year from the
Texas Review of Law and Politics, an award that is near and
dear to my heart since in a previous year I received the same
award. And he is a senior editor of The Heritage Guide to the
Constitution, Third Edition, and he has authored three books,
including An Introduction to Constitutional Law, which became a
top five bestseller on Amazon.
Our second witness is Professor Kate Shaw. Professor Shaw
is a constitutional law scholar and professor of law at the
University of Pennsylvania Carey School of Law. She joined the
Penn Carey Law faculty in January 2024 from the Benjamin N.
Cardozo School of Law, where she also served as codirector of
the Floersheimer Center for Constitutional Democracy. Her
scholarship focuses on Executive power, the law of democracy,
the Supreme Court, and reproductive rights. She has also taught
courses on administrative law and legislation, as well as a
seminar on the U.S. Supreme Court.
Before entering academia, Professor Shaw served in the
Obama White House Counsel's Office and clerked for U.S. Supreme
Court Justice John Paul Stevens and Judge Richard Posner of the
U.S. Court of Appeals for the Seventh Circuit. Her academic
writing has appeared in the Harvard Law Review, Columbia Law
Review, Georgetown Law Journal, and other journals. She is
married to Chris Hayes, a political commentator and host on
MSNBC.
And our third witness Chairman Schmitt will introduce. And
if you can start the testimony, I have got to run to the floor
and vote, and then I will be back.
Chair Schmitt. Okay. The third witness is Joel Alicea, and
he is the inaugural St. Robert Bellarmine professor of law
director of the Law School Center for the Constitution and the
Catholic Intellectual Tradition. He has also served as a
visiting professor at Duke Law School and Notre Dame Law
School.
Prior to joining the Catholic Law faculty, Professor Alicea
practiced law for several years at the law firm of Cooper and
Kirk, where he specialized in constitutional litigation. He
previously served as a law clerk for Justice Samuel Alito on
the U.S. Supreme Court and for Judge Diarmuid O'Scannlain on
the United States Court of Appeals for the Ninth Circuit.
Professor Alicea's scholarship has focused on
constitutional theory, civil procedure, and constitutional law.
He has been involved in the ongoing discussion on nationwide
injunctions and the scope of the judicial power, both in the
academy and in working with the Trump administration.
And at this point, before you guys give your opening
statements, it is the tradition of this Committee to be sworn
in, so if you would please stand and raise your right hand.
[Witnesses are sworn in.]
Chair Schmitt. Thank you. Professor Blackman, we will start
with you.
STATEMENT OF JOSH BLACKMAN, PROFESSOR OF LAW AND CENTENNIAL
CHAIR OF CONSTITUTIONAL LAW, SOUTH TEXAS COLLEGE OF LAW,
HOUSTON, TEXAS
Professor Blackman. Thank you. Chairman Cruz, Chairman
Schmitt, Ranking Member Whitehouse, Ranking Member Welch, thank
you so much for inviting me to testify. My name is Josh
Blackman, and I am the centennial chair of constitutional law
at the South Texas College of Law, Houston.
The topic of today's hearing is very timely, ``The
Supposedly `Least Dangerous Branch': District Judges v.
Trump.'' It is often repeated that we have three coequal
branches of government, but this isn't true. In Federalist 78,
Hamilton described the judiciary as the least dangerous branch.
Unlike Congress, which has the power of the purse, and the
President has the power of the sword, the courts have mere
judgment, yet it has been deeply ingrained in our consciousness
that the courts' foundational role is to balance the powers of
the elected branches.
Indeed, Chief Justice Roberts recently boasted that the
courts ``check the excesses'' of Congress and the Executive,
but the Chief Justice is incorrect. Indeed, Vice President
Vance recently explained that Roberts expressed a ``profoundly
wrong'' sentiment. Or more local to me, Judge Ho in Houston
aptly observed, ``It is not the role of the judiciary to check
the excesses of the other branches any more than it is the
judiciary's role to check the excesses of any other American
citizen.''
The question is, who will check the excesses of the
Executive? At least with regard to the lower courts, you all,
Congress. The Constitution refers to the Federal district
courts as inferior courts, yet far too many lower court judges
seem to have a superiority complex. We are witnessing a never-
ending onslaught of universal injunctions that make it nearly
impossible for the executive branch to function.
So what can be done? We can't look to the courts to check
themselves. The long history of judicial supremacy teaches that
judges of all stripes, conservative and progressive, seek to
defend and entrench their own institution. The answer to any
sustainable reform must come from the legislature. To
paraphrase Madison in Federalist 51, legislative ambition must
counteract judicial ambition.
Yet regrettably, most debates about judicial reform get
bogged down in politics. When there is a Republican President,
Democrats love the universal injunction. When there is a
Democratic President, Republicans love the universal
injunction. It is predictable.
Proposals that help only one side of the aisle have a slim
chance of enactment. The Federal courts cannot be reformed
through unilateral disarmament. Any reform must be bilateral.
I published an article called ``Bilateral Judicial Reform''
in the Texas A&M Journal of Law and Civil Governance. This was
in 2024, before the election. And I got 10 ideas to fix the
courts that might appeal to people on both sides of this aisle.
I will talk about three of them in my limited time today.
Number one, cases seeking a temporary restraining order can
be decided by a single judge, but can only give relief to the
named parties and are limited to 7 days. No longer can a single
judge issue a universal TRO that lasts nearly a month without
any appellate review.
Second, cases seeking preliminary injunction or equivalent
relief against Federal government and State governments are
referred to the en banc court, which appoints a randomly drawn
three-judge panel with two circuit judges and one district
court judge. There is some value in having a multi-member body
consider an issue rather than a lone district court judge
deciding difficult questions. And rather than having two
district and one circuit, I prefer two circuit, one district
because these cases tend to focus more on law than on facts.
The third proposal focuses on the appellate process. Chief
Justice Roberts recently stated that the appropriate response
to disagreement with a judge is the normal--he said, ``the
normal appellate review process.'' As things stand now, the
Supreme Court has a completely unpredictable and, indeed,
arbitrary approach to emergency applications. We may all agree
upon that. Congress can make the appellate review process of
the Supreme Court ``normal'' again.
Under my proposal, injunctions of statutes against Federal
Government and State governments are automatically stayed. The
stay is automatic. It is not discretionary. And if a three-
judge panel submits what I call a certificate of division--that
is, two judges go one way, another judge goes the other way--
the case is appealed to the Supreme Court's mandatory
jurisdiction. They can't deny cert. And oral argument is
decided on an emergency docket timeline, which Congress would
then set.
I think these three measures would have bipartisan appeal,
which I hope they do, and would go a long way to addressing the
never-ending fights between the President and the judiciary.
Thank you so much, and I welcome all of your questions.
[The prepared statement of Professor Blackman appears as a
submission for the record.]
Chair Schmitt. Thank you. Professor Shaw.
STATEMENT OF KATE SHAW, PROFESSOR OF LAW, UNIVERSITY OF
PENNSYLVANIA CAREY LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA
Professor Shaw. Good afternoon, Chairs, Ranking Members,
distinguished Members of the Subcommittees. Thank you for the
invitation to testify today.
I understand that the purpose of today's hearing is to
discuss recent judicial rulings against the Trump
administration and to situate those rulings in historical and
institutional context. There is no question that the Trump
administration has been on a losing streak in Federal court.
According to the most recent data compiled by Professor Steve
Vladeck, district courts have ruled against the administration
in 97 cases to date. That is a large number, but it is a number
that is best understood in context.
First, it has to be viewed in the context of the
unprecedented volume of executive action we have seen from this
administration. As of May 24, the second Trump administration
had issued 157 Executive orders. By comparison, the Biden
administration issued 162, nearly the same number, over the
course of 4 years. The first Trump administration issued 220
over 4 years. It is not surprising that this much more
executive action than previous administrations has drawn more
challenges.
The second thing to understand is that these rulings have
come from judges who sit in district courts across the country
and who were appointed by Presidents of both parties. Twenty-
five district courts in 10 circuits, and 73 judges appointed by
seven Presidents have ruled against this administration.
That leads me to my third point. These are not about policy
disagreements. The reason there has been such wide and cross
ideological consensus over the impermissibility of the
administration's actions is because the actions have been
plainly unlawful, and that has been clear to jurists of all
stripes. Again and again, the administration has acted in
violation of both the constitutionally required process for
lawmaking--one that gives Congress primacy--and the rights the
Constitution commands government to respect.
To be sure, some of these preliminary rulings against the
government will be, and some have been, reversed or stayed on
appeal. But it is telling that there are so many lower court
losses that the administration has not even bothered to
challenge. That is true in the birthright citizenship case
currently pending in the Supreme Court in which the lower
courts have unanimously ruled against the administration. But
the administration has not challenged those rulings on the
merits. Instead, it has asked the court to use the case as an
opportunity to restrict lower courts' ability to provide
nationwide relief and to do that in a context in which the
administration is not even defending the lawfulness of its own
Executive order.
Rather than focus on the appellate process or on remedying
the legal defects that have been revealed by litigation, this
administration and many supporters have suggested that the
problem is district judges. The separation of powers is
dynamic, it is not static, and there is definitely room for
debate about the proper scope of both Presidential and judicial
power. At different moments in our history, different
institutions and actors have sought to significantly increase
their authority, sometimes in ways that could not be squared
with the basic design of a constitution committed to limits on
any single entity's power.
At this moment, the entity engaging in overreach is the
executive branch. This administration has been marked by a
breathtaking degree of Presidential unilateralism that is
flatly inconsistent with statutes, the Constitution, and over
two centuries of practice. For that reason, it would be
profoundly misguided to seek now to curtail courts' authority
by eliminating or seriously limiting their ability to issue
nationwide injunctions.
It is true that the use of such injunctions has increased
in recent decades, and it is true that injunctions can be
abused. But at this moment, courts are the only branch of
government doing meaningful work to check the Executive,
protecting basic constitutional values, congressional
prerogatives, and our liberty which the separation of powers is
designed to safeguard.
If Congress does wish to wade into defending the separation
of powers, I would suggest a couple of options. First, it could
give the President some of the authorities he has tried to
assert. If Congress agrees that the Federal Government should
not protect Americans from abusive financial products and
services, it can pass legislation doing away with the Consumer
Financial Protection Bureau. If it wants to give DOGE access to
Americans' sensitive personal information, it can repeal or
amend the Privacy Act. If it wants the President to be able to
impose sweeping tariffs based on his determinations of trade
deficits, it can grant that statutory authority. As far as I
know, it hasn't done any of that.
Second, it could turn its attention to judicial security.
Threats to the physical safety of Federal judges have spiked in
the last 4 months and so have threats to judicial independence.
There is a pending proposal that would move the U.S. Marshals
Service from the executive branch to the judiciary in order to
ensure that marshals are able to focus effectively on
protecting Federal judges and executing Federal court orders.
That would both comport with the original structure of the
Marshals Service and would align the security practices of the
judicial branch with those of Congress, right, each branch
protected by its own security apparatus, not subject to direct
control by another branch.
The Federal courts are an important part of our
constitutional scheme, and at their best, they can serve both
to make rights meaningful and to enforce and facilitate core
commitments to popular sovereignty and self-rule. They have not
always done that, and again, a healthy democracy allows debates
about the proper scope of judicial authority.
But many attacks on the judiciary do not appear to be
animated by a desire for good-faith debates about the limits of
constitutional authority. They seem instead of a piece with
other efforts to neutralize any actor or institution that would
seek to limit this President's power.
Thank you again for the opportunity to testify, and I look
forward to your questions.
[The prepared statement of Professor Shaw appears as a
submission for the record.]
Chair Schmitt. Thank you, Professor Shaw.
Professor Alicea.
STATEMENT OF J. JOEL ALICEA, ST. ROBERT BELLARMINE PROFESSOR OF
LAW, DIRECTOR, CENTER FOR THE CONSTITUTION AND THE CATHOLIC
INTELLECTUAL TRADITION, THE CATHOLIC UNIVERSITY OF AMERICA,
COLUMBUS SCHOOL OF LAW, WASHINGTON, DC
Professor Alicea. Mr. Chairman, Ranking Member, Members of
the Subcommittee, thank you for the invitation to testify
today. It is an honor to speak with you.
While the topic of today's hearing touches on many issues,
my understanding is that I have been invited to address the
practice of universal injunctions in particular, and that will
be the focus of my testimony.
An injunction is an order from a court directing an entity
like a government official or a government agency to do
something or refrain from doing something. Courts have been
issuing injunctions for centuries, and when injunctions only
grant relief to a party to the case, they are generally not
controversial.
What makes universal injunctions controversial is that they
purport to give relief to entities that were never made parties
to the case. In the birthright citizenship cases now before the
court, for example, a district court judge in Seattle issued an
injunction forbidding the enforcement or implementation of the
President's Executive order on a nationwide basis. That means
that the Executive order cannot be enforced against anyone,
even though the only parties challenging the order were four
States and two individuals.
Now, universal injunctions are damaging to our political
and legal system for many reasons. The effect of a universal
injunction is that the policies of the elected President are
subject to what is effectively a veto by unelected district
court judges. Because it only takes a single judge to issue a
universal injunction, the President's opponents only have to
win one lawsuit to stop the President, whereas the President
has to win every single lawsuit if he wants to implement his
challenged policies.
Because they place unelected district court judges in
charge of national policy, universal injunctions are a problem
for Presidents of both parties. This is not a partisan issue.
But universal injunctions have been used at an astonishing rate
against President Trump in particular, which is why the issue
has become so prominent over the last few months. For example,
during the month of February alone, more universal injunctions
were issued against President Trump's policies than in the
first 3 years of the Biden administration.
The result has been an atmosphere of continuous emergency
throughout the first few months of President Trump's second
term. It seems as if every time the President issues a new
policy, it is almost immediately followed by a district court
issuing a universal injunction.
Since the President cannot allow a single judge to dictate
national policy, the administration has had to seek emergency
intervention by a court of appeals, and whichever party loses
in the court of appeals then seeks emergency intervention by
the Supreme Court. The court has therefore been inundated with
almost nonstop emergency litigation, partly because of the
practice of universal injunctions. The seemingly unending
stream of emergency petitions has forced the court to make
quick decisions on controversial and contested legal questions,
often without the benefit of oral argument, adequate briefing,
or different views expressed by the lower courts.
This is not how our constitutional system was designed to
work. Article III, Section 1 of the Constitution vests the
judicial power of the United States in the Federal courts. As
understood at the founding, the core meaning of the judicial
power was the authority to resolve disputes between parties
according to law. This party-centric understanding of judicial
power explains why Article III, Section 2 of the Constitution
extends the judicial power only to cases or controversies, that
is, disputes between parties. And that is why the Supreme Court
has repeatedly held that parties do not have standing to seek
relief beyond what is necessary to remedy the alleged harm to
the plaintiff.
Prior to 1789, injunctions were understood to be limited.
An injunction could only provide whatever relief was necessary
to redress a plaintiff's asserted injury. The same
understanding of injunctions prevailed until the mid-20th
century. Universal injunctions, it bears emphasizing, are a
20th century development, and the routine use against
government action only began within the last decade. Thus,
Federal courts lack the power to grant equitable remedies that
extend beyond what is necessary to address the plaintiff's
alleged harm, which is precisely what universal injunctions
purport to do.
The American people never gave judges the power to issue
universal injunctions. Judges have seized that power for
themselves, and only quite recently in our history. District
court judges are thus exercising power for which they have no
constitutional warrant.
While universal injunctions have damaged the Presidency and
the Supreme Court, they have done the most damage to democratic
governance by illegitimately thwarting the will of the people's
elected representatives. As Justice Elena Kagan once observed,
``It just can't be right that one district judge can stop a
nationwide policy in its tracks and leave it stopped for the
years that it takes to go through the normal process.''
Courts play a vital role in our constitutional system. They
resolve disputes between parties according to law, and in the
process of doing so, they say what the law is, as Chief Justice
John Marshall said in Marbury v. Madison. None of that is at
issue in the controversy over universal injunctions. What is at
issue is whether courts can step beyond their limited role of
resolving legal disagreements between parties and instead
resolve policy disagreements for the whole Nation. The answer
to that question should be obvious. No.
[The prepared statement of Professor Alicea appears as a
submission for the record.]
Chair Cruz. Thank you to each of the witnesses for your
testimony.
Professor Blackman, prior to 1963, had any Federal court
issued a nationwide injunction blocking Federal law or
executive policy?
Professor Blackman. I am not aware of any.
Chair Cruz. Would you agree that from the founding through
the 20th century, the Federal judiciary consistently understood
its powers to be limited to the parties before the court?
Professor Blackman. Yes.
Chair Cruz. And would you agree that the widespread use of
universal or nationwide injunctions, especially against
Presidential actions, is a recent development emerging in the
last decade?
Professor Blackman. Yes.
Chair Cruz. That is important history because what we are
seeing now is not normal, and we have over two centuries of
history when this didn't happen. It is instead a novel and
dangerous concentration of judicial power. When a single
district judge issues a nationwide injunction, are they acting
as a constitutional judge or as a de facto national
policymaker?
Professor Blackman. It is effectively a veto on the
executive branch.
Chair Cruz. We have seen district judges block President
Trump's policies on immigration, energy, birthright
citizenship, and even federal hiring and firing, all prior to
any appellate review, all without any input from Congress, all
from one single judge.
Let me offer an analogy. Suppose the Federal Government
approves a plan to cut down trees in a national forest to make
way for a pipeline. One person who occasionally camps in that
forest files a lawsuit. The judge not only grants relief to
that individual, but certifies a putative class action on
behalf of all campers nationwide and issues an order blocking
any tree cutting in any forest used by any member of the
putative class across all 50 States. Professor Blackman, is
that consistent with the Constitution's design for judicial
relief?
Professor Blackman. No, it is not.
Chair Cruz. Or is that rather a recipe for nationwide
paralysis based on a single courtroom?
Professor Blackman. Yes.
Chair Cruz. Would you also agree that the proper
constitutional remedy is to address the plaintiff's actual
injury, not to give one judge the power to halt activity
unrelated to the case at hand?
Professor Blackman. Article III requires that.
Chair Cruz. And how does Article III require that?
Professor Blackman. Article III speaks of cases and
controversies. Specific people have specific injuries. You
cannot grant relief to broad classes who don't have an asserted
injury before the court.
Chair Cruz. And if broader relief is truly necessary,
wouldn't that be better handled by class certification by the
appellate courts or by Congress, not a lone district judge
rewriting national policy?
Professor Blackman. Absolutely.
Chair Cruz. Can you explain how this pattern of nationwide
relief not only intrudes on the President's Article II powers
but also undermines Congress' own lawmaking authority?
Professor Blackman. What ends up happening is you file many
lawsuits in many districts seeking parallel relief, and it only
takes one judge to grant the universal injunction. And once a
judge grants the injunction, it is off to the races. Unless the
ruling stayed, the executive branch must immediately halt what
it is doing. And this has really changed the way the executive
branch and the courts have operated, as you said, over the past
decade. And I think the time is ripe to actually address this
issue and figure a way to stop this sort of insanity. We can't
leave it to the Supreme Court to figure everything out.
Chair Cruz. And Professor Blackman, your testimony outlines
structural reforms that Congress could enact to restore
balance. Can you explain how requiring a three-judge panel
drawn from both district and circuit judges would deter
judicial overreach and restore legitimacy to preliminary
relief?
Professor Blackman. Well, this is how Congress ran things
for much of the 20th century. They stopped in the 1960's and
1970's. The benefit of a three-judge panel is you have diverse
voices. In fact, even on this dais, you don't always agree with
each other. When you talk to each other, you find perhaps the
closer truth. A single judge acting by himself or herself can
often be like a god. There is no limitation of what they can
do. But the benefit is, if you have two circuit and one
district, you are basically bypassing this next-level review.
Have the initial panel of three judges and have managed review
by the Supreme Court. We need to cut out this race to the court
of appeals, this race to the Supreme Court. Let's compress the
process and get through it quickly enough so these issues of
national significance resolve fairly.
Chair Cruz. And by the way, if the characterization of
these nationwide injunctions by my Democrat colleagues was
accurate, if this was simply a result of, in their view,
Trump's repeated lawless activities, one would assume a three-
judge panel would find the same ruling on the merits as a
particular lone district judge. Is that correct?
Professor Blackman. In theory, but if drawn randomly, I
think it is less likely. Random draws of three-judge panels
would be a very good change to see how things would work out.
Chair Cruz. Well, and much like Sherlock Holmes and the
lesson he derived from the ``dog that did not bark,'' in this
case, when we hear our Democrat colleagues talking about this
is simply enforcing the law, the dog that isn't barking is why
do they keep going to the same handful of radical judges in
bright blue districts, and why will every Democrat on this
panel oppose any effort to require a three-judge panel for a
nationwide injunction? And the answer is they know fully well
that a fair panel would reject the vast majority of these
claims. And at the end of the day, I think too many Democrat
members of this body want to frustrate the will of the voters
who reelected President Trump and elected a Republican Senate
and a Republican House, and they are perfectly happy for lone
judges to impose their own policy preferences rather than
respect the Democratic will of the voters.
Senator Whitehouse.
Senator Whitehouse. Thank you. It strikes me that what we
have here is a team that has taken the field and engaged in
unprecedented numbers of fouls and unprecedentedly flagrant
fouls. And when the refs blow the whistle on the unprecedented
number of fouls, the partisans of the team committing the fouls
call out the referees for the unprecedented number of whistles
that they blow.
To try to level set this, let me ask, if you can do a yes
or no answer, let's try to go right down the panel, yes or no.
Is it appropriate to call judges USA-hating monsters who want
our country to go to hell?
Professor Blackman. No.
Senator Whitehouse. No.
Professor Shaw. No, Senator.
Professor Alicea. In general, no, Senator.
Senator Whitehouse. And is it appropriate to call judges
lunatics who do not care even a little bit and could very well
lead to the destruction of our country?
Professor Blackman. I don't think so.
Professor Shaw. No.
Professor Alicea. No.
Senator Whitehouse. And is it appropriate to post pictures
of judges' children with the intent to incite harassment and
threats?
Professor Blackman. No.
Professor Shaw. No.
Professor Alicea. No.
Senator Whitehouse. Okay, good. We are off to a level set.
I will take that.
Professor Alicea, when you were installed in your chair,
the announcement was that the chair was made possible through
the generosity of Leonard Leo, trustee of both the Marble
Freedom Trust and Catholic University. Is that accurate? Is
that who funded your chair?
Professor Alicea. My understanding is that Leonard Leo,
through the Marble Freedom Trust, directed funds that funded
the chair. I think that is accurate.
Senator Whitehouse. And with respect to your chair, Mr.
Blackman, $1 million was given to fund it through an
anonymizing organization called DonorsTrust, which has been
called the ATM of the far right. Do you know who was behind
that DonorsTrust laundered donation?
Professor Blackman. I appreciate the question, Senator. I
would direct all these to my college to answer.
Senator Whitehouse. I am sorry, first of all, your mic is
not on.
Professor Blackman. No, I appreciate the question, Senator.
I would direct all these questions about this to my college.
Thank you.
Senator Whitehouse. My question is actually to you, and it
is whether you know. Do you know who was behind that?
Professor Blackman. I appreciate the question. Anonymous
gifts are as they are, and I appreciate all those questions
directed to my college.
Senator Whitehouse. Your college can't answer what you
know. This is a question to you about what you know. This is a
Josh Blackman question.
Professor Blackman. Thank you, Senator.
Senator Whitehouse. Do you know who funded your chair?
Professor Blackman. I have answered the question.
Senator Whitehouse. Yes or no?
Professor Blackman. Thank you, Senator.
Senator Whitehouse. You can't say this. Do you realize that
if you were an expert witness in a judicial proceeding, I would
be entitled to know who was funding you because it goes to bias
and conflict, correct? That is basic sort of hornbook trial
practice, right?
Professor Blackman. Fair enough, Senator. I----
Senator Whitehouse. I am right about that. You will agree.
Professor Blackman. We were invited to testify about
nationwide injunctions and the like. This is not something I
was prepared to testify about, so that is my answer for today.
Senator Whitehouse. Okay. Well, at least we know who funded
Professor Alicea, and you won't even answer what you know.
Let me turn to Professor Shaw. Let's just say that this
activity today is designed to whip up more animus against
courts and that it adds to the atmosphere of threats that the
court is now experiencing. I think we are up to, is it 162
threats to judges, which is pretty impressive. And a lot of
this has the appearance, at least to me, of looking like it was
orchestrated, looking like it was instigated, looking like
there are folks behind it.
[Poster is displayed.]
So, presumably, the Marshals Service should be not just
protecting the judges and their family members, but also
investigating the sources of the threats. Can you tell us what
some warning signs would be that the Marshals Service has been
directed, perhaps by the Attorney General or perhaps by some
other senior official in the Department of Justice, to not do
proper investigations and particularly not look into
orchestration or any effort to gin up these threats?
Professor Shaw. Senator, I have no information. It strikes
me that a non-response to your queries or queries from other
Members of Congress to the Marshals Service or to the
Department of Justice are concerning. There should be an active
dialog between the branches about something as serious as the
security of the third branch.
And I guess I would just echo what Senator Booker was
saying earlier. I mean, there have been two relatively recent
periods when bipartisan legislation was passed to improve
judicial security after the tragic murder of Judge Salas' son
and also after the attempted attack on Justice Kavanaugh.
Judicial security measures on a bipartisan basis quickly passed
Congress, and I would hope that this is a moment in which broad
agreement could be reached that it is necessary to do something
similar.
Senator Whitehouse. And if it appeared that those were part
of a larger plan or conspiracy, it would be appropriate for law
enforcement to look into the question of whether there was a
larger plan or conspiracy, correct?
Professor Shaw. Absolutely.
Senator Whitehouse. Thank you.
Chair Cruz. I would note that Senator Whitehouse asked two
of the three witnesses about private donations given to their
respective law schools but somehow omitted Professor Shaw. And
I guess I would ask of Professor Shaw, are you aware of what's
been publicly reported in disclosures that your employer, the
University of Pennsylvania, from 2013 to 2019 received from
communist China $67,618,610? Have you seen those public
reports?
Professor Shaw. I am sorry, Senator, I have not.
Chair Cruz. Well, they are publicly reported and $67
million from communist China. If we are going to just clarify
the record, let's clarify the record across the board.
Professor Shaw. If I may----
Senator Whitehouse. The record----
Professor Shaw [continuing]. I actually don't hold an
endowed chair, so I--there was no--I don't have an endowed
chair personally, so I don't think I was being singled out for
any reason but that I don't----
Chair Cruz. But you do work for Penn?
Professor Shaw [continuing]. Have one. I do work for Penn,
yes.
Chair Cruz. Chairman Schmitt.
Chair Schmitt. Thank you. I suppose to further the analogy
that Senator Whitehouse gave of reffing a game, I don't think
anybody has a problem on this side of the aisle with a ref
calling balls and strikes or calling a foul. The problem is,
what if the ref's daughter hired the coach? What if the ref has
money on the game? What if people start to question the
legitimacy of the ref in the game? We all know what happens.
People don't watch it anymore. Vegas takes the game off the
board.
So it gets to sort of this question of, as I referenced in
my opening statement with Hamilton, the reason why it is
supposed to be, you know, the least dangerous branch is it
relies on the other two branches for enforcement. And the
Article III branch should be very well aware that if they lose
legitimacy, they are cooked. And that is why we are having the
hearing, because people are questioning--how does Judge
Boasberg--and I would actually ask you, Professor Blackman. I
will pose this as a question. How in the world does Judge
Boasberg get a case when he is not the emergency assignment
judge, he is on vacation in the middle of the night? How can
that happen?
Professor Blackman. I don't know. And perhaps even more
significant, if you read the transcript of the case, he
basically told the plaintiffs to change their case. They
brought it one way, he said, no, here, plead it this way. Okay,
good. Now, I am going to certify class and issue a ruling and
go tell the plaintiffs--he basically litigated the case on
behalf of the parties. This wasn't merely a passive bystander.
He was an active participant.
Chair Schmitt. It is a statistic impossibility. And I want
to sort of--I referenced what had been going on in the Eighth
Circuit. Ten of the 11 appellate judges in the Eighth Circuit
appointed by Republicans. Amazingly, Judge Kelly ends up on all
the politically sensitive cases on a panel. It is not possible,
except for the clerks there in that office or the people that
work for the clerk's office are populated by her former clerks.
So these are the kinds of things that this isn't just a new
phenomenon. This is a concern about activism on the bench that
has existed for a long time. It is just now on steroids.
So you talked briefly, and I mentioned it too, sort of Rule
23 as a more viable option for this, limiting the orders of the
parties, the rulings of the parties before the court as a case
in controversy. Those are ways to address this. Are there any
other structural suggestions that you have? And I also want to
pose this to Professor Alicea as well.
Professor Blackman. Sure. I think one urgent need is to
think about automatic stays. When you have district judges
granting universal injunctions and they don't stay their
rulings, there is this frantic race to the court of appeals and
to the Supreme Court. And the executive branch is not capable
of actually changing policy on the fly, and that gives rise to
these attempted contempt proceedings. I would think about if a
universal injunction is granted or a nationwide class is
granted, stay their ruling for 24 hours, 48 hours, some limited
period to at least take an appeal to the appellate court and
don't let the judge who just ruled against you decide whether
an appeal should be taken. I think the automatic stay would go
a long way to addressing these issues.
Chair Schmitt. Professor Alicea?
Professor Alicea. I think beyond Rule 23 and the
enforcement of Rule 23, it is important to address the scope of
injunctions not just through the non-APA route but also through
the administrative procedure route under Section 706. So I
think that to the extent that we are going to really address
the problem overall, you can't just address universal
injunctions that are done outside of the context of
administrative action, but also through the process that the
APA sets up for challenging agency action.
Chair Schmitt. Thank you. Professor Blackman, you recently
wrote an article in May of this year where you state the
District of Maryland's standing order, that judge that
automatically blocked deportations upon filing a habeas
petition without merit review, is pretty clearly designed to
thwart the Trump administration's immigration policies. Could
you explain that?
Professor Blackman. Yes, this is unusual. So the District
Court of Maryland issued what is called a standing order, which
is basically an order that applies in all cases. And it says,
by virtue of filing a habeas petition, a grant of stay is
automatically issued.
The Supreme Court has said there is a four-factor balancing
act to decide whether a stay must be granted. This is
automatic. And if you actually read this seriously, it is a
permanent handcuff on the President's authority to deport
people.
The judge actually walked it back about a week ago. They
sort of modified it. Maybe the Judicial Conference just got
wind of this. But I think there is still an attempt to limit
the Executive power in ways that have not been done before.
Chair Schmitt. And it was issued to the government, I think
it was writ large, right? I mean----
Professor Blackman. Yes.
Chair Schmitt [continuing]. This is very unusual.
Professor Blackman. Right. It wasn't notice given in each
case. It was by virtue of posting on a website. This rule
applies universally. There is actually a rule that says any
ordinance you put on each ECF docket, it can't be done
globally.
Chair Schmitt. And I think one of the points of this
hearing, the Supreme Court has a case in front of it where it
has an opportunity to rein this in. And I think the Chief
Justice is very keen to understand the perception of the court.
It seems to be a good opportunity, I think, probably for the
Supreme Court to finally weigh in here. Thank you.
Chair Schmitt. Senator Welch.
Senator Welch. Just a couple of points I want to make.
Number one, the effort to get universal injunctions has been
pursued by litigants, including some of the attorneys general
who serve on this Committee. I know you did as attorney
general, sought several universal injunctions.
Chair Schmitt. Since you referenced it----
Senator Welch. Yes.
Chair Schmitt [continuing]. The vast censorship enterprise
of the Biden administration that a court declared was perhaps
the biggest offense to the First Amendment in the history of
the country where there were named parties that were
specifically enjoined, you mean that case? Yes.
Senator Welch. I do. My point here is that if there is an
opportunity out there for a litigant, whether it is a lawyer
trying to get the judge that he or she thinks is going to be
the most favorable or an Attorney General trying to get the
most relief for something that he or she believes in, they will
do it. So it is up to us if we think that process should be
adjusted to change it. But it is not a Republican-Democratic
deal. I mean, it is what litigants do.
The second thing is, Professor Blackman, you mentioned how
some of these universal injunctions inhibit the authority of
the Executive, right? What is the problem with that? I mean,
what is so great about the Executive having unlimited
authority?
Professor Blackman. Well, I will take the Alien Enemies Act
particularly. This is a statute that has been around for 200
years. It has been enforced in various times. And historically,
it has been a very deferential statute. The courts haven't
scrutinized when it should be enforced, and they haven't told
plaintiffs to turn around. So I think we are seeing not only
aggressive use of the universal injunction but also intrusions
upon the Executive authority.
Senator Welch. All right. So I get that. And let me just be
clear. I disagree with you. And I disagree with the Executive
invoking what I regard as a very discredited law and using it
to deny due process. So I am on the side of pushing back
against executive authority, so I don't see that as a big
problem.
Professor Shaw, one of the things people here are talking
about is the class action. And here is my question with it, and
I want you to address this. I had a small-town law firm, and I
would have people who walk in, and every once in a while, they
had a hopeless case that we would take, and we would get them
relief. And if I had to do that in a four-person law firm and
certify a class action, I couldn't have taken that case.
So this so-called remedy of using the class action means
that those Vermonters or those folks in Washington State or
wherever who go into a lawyer's office to seek relief, and that
lawyer's willing to take the case, what are the burdens on that
law firm if they have to certify it as a class?
Professor Shaw. Yes. I mean, it seems to me that--let's
take maybe the birthright citizenship example--arguments that
challenges can be maintained against this Executive order, but
they have to be done doing the class action--using the class
action device, I'm not sure if those are being made in good
faith. Rule 23 of the Federal Rules of Civil Procedure has
relatively demanding requirements. The Supreme Court has
ratcheted up those requirements in a series of cases in the
2010's. The plaintiffs have to be similarly situated in terms
of their injury and the kinds of relief that they are seeking.
And I--you know, the Solicitor General in the Supreme Court
a couple of weeks ago didn't disclaim the likelihood that they
would be back before the Supreme Court saying, well, you
shouldn't even be able to certify a class with respect to this
Executive order. So it feels to me like a little bit of a
``heads we win, tails you lose.'' You can try a class action,
and we will marshal different kinds of arguments against you
doing that.
But it is not as though it is very easy to satisfy the
requirements of Rule 23. And I think that shifting from these
injunctions to a pure Rule 23-based regime would disadvantage
those unable to secure representation to who don't satisfy the
requirements of class membership and would mean no relief from
government unlawful conduct.
Senator Welch. Yes. You know, and that is one of the things
that is so important, hopefully, to all of us is access to the
courts for an everyday person in Missouri, Texas, or whatever.
So you get some lawyers who are just willing to do it because
it is a neighbor, it is a friend, it is a class they believe
in. I want them to be able to act and bring that case to court
and not have to go through the incredible expense.
On the question of universal injunctions, I mean, are there
some suggestions you have or forum shopping that you have that
would expedite or address what you perceive to be some
legitimate problems that aren't siding with the partisan divide
on this question?
Professor Shaw. Thank you for that question, Senator. I do
think that that single-judge divisions, which allow plaintiffs
to, with absolute certainty, ensure that they will receive a
particular judge when they file in a particular division of a
district, are an enormous problem, right? That forum shopping
is not exclusive to these single-judge divisions, but it is the
most serious kind of forum shopping.
And I should say, as of I think right now, none of the
orders against the Trump administration have issued from judges
who sit in single-judge divisions, unlike some of the orders
issued against the Biden administration. But I do think that
the Judicial Conference has already endorsed a proposal that
would essentially eliminate these single-judge divisions. I
think that is something that we should all be able to get
behind.
Senator Welch. Well, you know, I would be willing to work
with my colleagues on some of these practical questions and
practical answers where we strip out whether we agree or
disagree with the particular decision that has been made by the
court. Thank you. Thank you all.
Chair Cruz. Professor Shaw, you said Congress had set high
standards in Rule 23 for certifying class actions. Why would we
have set high standards for class actions?
Professor Shaw. So to Rule--I don't think I said that, sir,
just that the Rule 23 standards are relatively demanding that
the court has ratcheted up the difficulty of satisfying them.
Chair Cruz. But why would we set demanding standards for
class actions?
Professor Shaw. I'm not sure I'm--you know, the Rules
Committee produces the rules, so I am not quite sure----
Chair Cruz. But Congress adopts them.
Professor Shaw. Yes. Yes. So, I mean, you tell me, sir.
Chair Cruz. Well, there is a reason we have high standards
for class actions because it should be difficult to certify a
nationwide class. And what we are seeing is single judges
ignoring the Federal rules of civil procedure, ignoring the
rules Congress has set out for class certification and saying,
I am just going to issue an injunction to the whole damn
country, and it doesn't matter if it meets even the bare
thresholds of the Federal rules.
Senator Kennedy. Would any of you advise a client to defy a
Federal court order?
Professor Blackman. No.
Senator Kennedy. None of you would? How about you,
Professor?
Professor Shaw. I mean, under most circumstances, we follow
the government, and private parties follow court orders. I
suppose it's not--I would not rule out ever the possibility
that a sufficiently egregious order, there should be some
consideration of whether there is a way----
Senator Kennedy. So in some cases----
Professor Shaw [continuing]. I think it's a qualified
answer, yes.
Senator Kennedy. In some cases, you would?
Professor Shaw. In an extremely narrow band of cases, I
think it would be considered, yes.
Senator Kennedy. Okay. Do any of you think that nationwide
or universal injunctions are not being abused?
Professor Shaw. I'm not sure what the--if I may, Senator,
I'm not sure what the time horizon of the question is. I don't
think that--there could be good-faith disagreements about the
correctness of some of them, but I have not seen----
Senator Kennedy. I understand----
Professor Shaw [continuing]. In the last 4 months, abuse,
no.
Senator Kennedy. I have read your stuff, and I have read
your writings. I don't want to get bogged down with this, but I
have little respect for your opinion because I have read your
stuff. When someone is in the White House that you agree with
and someone gets a universal injunction against him, you don't
like universal injunctions. You called them judges acting like
they are politicians in robes and judges looking like crass
political actors.
But now that President Trump's in the White House, who you
dislike, you think that universal injunctions taste like
pumpkin pie. So I have to discount what you say because I think
you act on your political beliefs, and I worry that that is
what you are teaching your kids. So I will leave you out of
that.
Do you think nationwide injunctions are being abused?
Professor Alicea. Certainly, Senator, I think that is----
Senator Kennedy. They are being abused by both sides,
aren't they?
Professor Alicea. Yes, Senator.
Senator Kennedy. Both Republicans and Democrats are forum
shopping, aren't they?
[Points at witness.]
Professor Blackman. Certainly.
Senator Kennedy. Professor, do you disagree with that?
Professor Blackman. I think both sides are abusing them. I
agree.
Senator Kennedy. Okay. Both sides. There are no clean hands
here.
Now, your suggestion is that when a Federal judge issues a
nationwide injunction, there should be an automatic stay and an
expedited right of appeal. Is that right?
Professor Blackman. Yes, sir.
Senator Kennedy. Do you disagree with that?
Professor Alicea. I haven't given enough thought to have a
position on it, Senator.
[Points at witness.]
Senator Kennedy. I suspect, Professor, your answer will be
it depends on who is President.
Professor Shaw. No, Senator.
Senator Kennedy. Let me ask you about this. What if we had
a rule--I was reading an article the other day--I am not
suggesting it, I just want your opinions--that said if a
President, any President, issues an Executive order, let's say,
that clearly violates settled Supreme Court precedent, that a
Federal judge can't issue a nationwide injunction. For example,
for example, if a President issued an order that said no one in
America has right to counsel any longer, included but not
limited to in a felony case, having the government pay for your
lawyer if you can't afford it. That clearly violates settled
Gideon v. Wainwright. In that case, a judge has no authority--
or does have authority to issue a nationwide injunction. But in
a case where the law is unclear, a judge should refrain from
that. Now, obviously, we would have to trust our judges, but we
are supposed to be able to trust them anyway. What do you think
about that?
Professor Alicea. I don't agree with that, Senator, because
I think universal injunctions transgress the limitations under
Article III even if the underlying merits are clear.
Senator Kennedy. I happen to agree with you. I don't think
there is any basis under Article III, under Supreme Court
precedent, under the English common law for nationwide
injunctions. I think politicians have helped judges, and many
judges are politicians, to just make it up. And many of them
are like Professor Shaw here. If they like the President, they
are against nationwide injunctions. If they don't like the
President, they are for them.
Professor, let me ask you this while I have you. On April
22, 2024, you said there are some members of the Supreme Court
that are evil. Which justices were you talking about?
Professor Shaw. I will take it your word, Senator. I don't
recall using that word but----
Senator Kennedy. All right. Here is what you said. You were
talking about the majority opinion in Muldrow v. City of St.
Louis. You said, ``Justice Kagan, I mean, will she be able to
control the opinion's future distortion by her evil colleagues?
Probably not.'' Who were you talking about?
Professor Shaw. Sir, I am very skeptical. There's a--if it
was a transcription, it was probably a transcription error. I
do not think I said evil.
Senator Kennedy. No, you said it. Why don't you own up to
it? You call some members of the Supreme Court evil. Now, which
ones do you think are evil?
Professor Shaw. I would have to refresh my recollection. I
have been very critical----
Senator Kennedy. You are embarrassed----
Professor Shaw [continuing]. Of some members of the Supreme
Court.
Senator Kennedy [continuing]. That you made that statement,
aren't you?
Professor Shaw. I--I'm----
Senator Kennedy. You are an officer of the court.
Professor Shaw. Senator, it doesn't sound like something
that I would say.
Senator Kennedy. You know what I am embarrassed at? That
you are teaching our kids.
Professor Shaw. I don't refer to Supreme Court justices as
evil----
Senator Kennedy. You did right here----
Professor Shaw [continuing]. In the classroom, sir.
Senator Kennedy [continuing]. On your podcast April 22,
2024----
Professor Shaw. Okay. Well----
Senator Kennedy [continuing]. Big as Dallas. And you are an
officer of the court, and you are here advising us to be
respectful of Federal judges. And you say they are evil members
of the U.S. Supreme Court. Gag me with a spoon. You are part
the problem in all of this.
Chair Cruz. Thank you, Senator Kennedy.
Senator Durbin.
Senator Durbin. So I am going to give the panel members an
opportunity to respond to a question posed by Justice Sotomayor
during the oral arguments on the birthright citizenship bill.
And she said, imagine a new--I am paraphrasing. Imagine a new
President takes office and decides, because of the epidemic of
gun violence in our country, to issue an Executive order
announcing that he will deploy the military to seize the guns
of every gun owner across the country. That Executive order
would be swiftly challenged in a Federal district court or more
likely in several district courts. Should a district court be
allowed to issue a nationwide injunction to at least
temporarily prevent the enforcement of that Executive order? I
would like each of you to respond. Professor Blackman?
Professor Blackman. I actually addressed that point in a
blog post. We actually have history of someone in this country
disarming everyone. His name was General Gage, and that was not
fought with Rule 23.
Senator Durbin. So your answer?
Professor Blackman. I don't--if the President can't take
everyone's gun in this country, I don't think the remedy would
be in the courts.
Senator Durbin. Professor Shaw?
Professor Shaw. Yes. I mean, I think that whatever the
constitutional right is, whether, you know, it's a Second
Amendment, a First Amendment, a due process right, if a
President tries to do something that is in clear violation of
settled law, whether we like the law or not, that--an
injunction is an appropriate remedy.
Senator Durbin. Professor Alicea?
Professor Alicea. No, Senator. I have written in support of
the Second Amendment in many fora, but I don't think that a
judge could issue a universal injunction under those
circumstances. Of course, the challengers could seek
certification under Rule 23 and then try to pursue class-wide
relief.
Senator Durbin. So do you think it is reasonable to expect
every single person affected by an Executive order like the one
I described to seek relief through Rule 23 or to file their own
lawsuit to seek relief?
Professor Alicea. I don't think that would be necessary,
Senator. If you had one person who sought class certification
successfully, that would be sufficient. But even if you had
failures to class certification, once you get to the Supreme
Court and the Supreme Court issues a binding decision, that
precedent would bind all the lower courts. So it's not a
question of whether you get to a uniform rule. It's just a
question of when you get to a uniform rule and by what route.
But those limitations on the route matter under Article III.
Senator Durbin. There has been a lot said during the course
of this hearing about the possibility or likelihood that judges
are being selected for this process to review the decisions of
the Trump administration on a political basis. Professor Shaw,
I noted--I am not sure you read this into the record, but you
said the--according to a recent analysis by Professor Bonica,
the Trump administration has lost 80.4 percent of the time
before district judges appointed by Democratic Presidents, 80.4
Democrats, 72.2 before district judges appointed by Republican
Presidents. Who is Professor Bonica?
Professor Shaw. He is a political scientist at Stanford.
And yes, so that is my written statement. And I think it does
suggest that this is--it cannot be reasonably just attributed
to policy antipathy. This is about a pretty broad consensus
about the lawlessness of many of the administration's actions.
And I think both Democratic and Republican appointees have seen
that.
Senator Durbin. That is my impression as well. This is not
a stacked deck, a statistical impossibility. It is a fact. This
President has issued more orders with more controversy than any
President in recent memory.
I have only been to Amarillo once when I was a younger
person. I am sure it is a lovely city, but it turns out that
the Amarillo division of the Northern District of Texas has
gotten quite a bit of publicity. It turns out that people been
filing lawsuits there because there is only one judge who sits
in that division, Judge Matthew Kacsmaryk, who I remember
appearing before the Committee. Litigants knew Judge Kacsmaryk
would be assigned to the cases and viewed him as favorable to
their arguments.
So the argument that is being made that venues shopping,
forum shopping is on one side of the table, it is clearly on
both sides of the table. And Judge Kacsmaryk is pretty well
known for the way he rules. Professor Shaw, do you have any
observation on that?
Professor Shaw. Yes. I mean, as I said in response to
Senator Welch, I actually think that those single-judge
divisions, like the one in Amarillo, Texas, where Judge
Kacsmaryk sits, are a genuine problem. But none of the
injunctions against the Trump administration have issued from
judges who sit in those single member districts, so I am not
even sure it's fair to say that that's a problem we are seeing
now and we saw previously. We actually aren't seeing it now,
but I do think that, regardless of who the President is, these
single-judge divisions are a problem that Congress would be
well served to address.
Senator Durbin. Thank you very much. Thank you, Chairman.
Chair Cruz. Thank you. Senator Hawley.
Senator Hawley. Thank you very much, Mr. Chairman--Mr.
Chairman. It is great to have this hearing. Thanks for calling
it. Thanks to all of our witnesses for being here. Professor
Shaw, nice to see you again.
Let me just start with you, if I could, Professor Shaw. You
talked about the fact that there have been lots of rulings
against the Trump administration. That is absolutely
statistically true. I disagree with almost all of them. In
fact, I think all of them. But the issue of this hearing really
isn't the rulings, is it? It is the remedies. Would you agree?
And those are distinct things. You may think that the ruling is
quite correct, but that is actually not what we are talking
about here today. We could have a hearing on that. Maybe we
should. But we are talking today about the remedy.
And the question is, is a remedy that binds parties who are
not before the court, is that an appropriate thing? I mean,
aren't you concerned about judges binding nonparties in their
remedies? You may love the ruling, but even if you do, don't
you think it is a little bit anomalous for courts to be going
out there and binding parties who are not before them? I mean,
is that something we want to encourage?
Professor Shaw. Senator, I think that judges have been
issuing rulings that impact nonparties since Marbury v.
Madison, right, so----
Senator Hawley. So you are not concerned about it?
Professor Shaw. I'm not. I absolutely think that they can
be abused, and they have been----
Senator Hawley. Well, now, wait a minute.
Professor Shaw [continuing]. Abused.
Senator Hawley. Wait a minute. Wait a minute. Wait a
minute. You were very concerned about it just a couple of years
ago. You said in response to a nationwide injunction on the
Biden FDA's mifepristone rules, ``This injunction is a travesty
for principles of democracy, notions of judicial impartiality,
and the rule of law.''
Professor Shaw. I think I've been consistent today. That
was issued by Judge Kacsmaryk in a single-judge division.
Senator Hawley. Wait a minute. Wait a minute.
Professor Shaw. They're a problem. Those are a problem.
Senator Hawley. You are taking issue with him personally--
wait.
Professor Shaw. No, no, no.
Senator Hawley. So your testimony is if it is issued by
Judge Kacsmaryk, it is bad?
Professor Shaw. No, sir.
Senator Hawley. It is personal?
Professor Shaw. That is not my testimony. I said----
Senator Hawley. So is the problem with the injunction? You
were criticizing the universal injunction here.
Professor Shaw. Issued by a judge in a single-judge
division. I've been very clear today----
Senator Hawley. Ah, so----
Professor Shaw [continuing]. That those are a problem.
Senator Hawley [continuing]. Issued by a Republican judge
in a Republican division, then it is bad.
Professor Shaw. No, Senator.
Senator Hawley. Otherwise, it is fine.
Professor Shaw. No, Senator. I think that single-judge
divisions are a problem.
Senator Hawley. What is the principle difference? I am
looking for a principle. I understand you hate the President. I
understand you love all of these rulings against him. You and I
both know that is not a principle. You are a lawyer. What is
the principle that divides when issuing a nationwide injunction
is okay and when it is not? When the Biden administration was
subject to nationwide injunctions, you said that they were
travesties for the principle of democracy. You didn't say the
referral to Judge Kacsmaryk was a travesty. You said his
injunction was a travesty for principles of democracy.
Professor Shaw. So----
Senator Hawley. In other words, the translation is you just
didn't like the outcome. Is that right?
Professor Shaw. No, Senator. Look, we're talking about--I
don't think Article III precludes this form of relief. So we
are talking about prudential considerations.
Senator Hawley. Prudential meaning political?
Professor Shaw. No.
Senator Hawley. Then give me----
Professor Shaw. No.
Senator Hawley. So far, I have yet to hear it. You have
been questioned by multiple Senators. I have yet to hear a
principle other than the fact when you like the ruling, you
think it is great to apply it nationally, including nonparties.
When you don't like the ruling, it is a travesty for the
principles of democracy, notions of judicial impartiality, and
the rule of law.
Professor Shaw. Look, Senator, I'll say I think I am self-
aware enough to know that my view of the underlying legal
question, I am sure, colors my perception of the remedy, and I
think that we should all acknowledge that. And yet I do think
that there----
Senator Hawley. Then why shouldn't we stop nationwide
injunctions for everybody?
Professor Shaw. I think there is----
Senator Hawley. That is what we are talking about today.
Professor Shaw. Because I am not willing to leave without
relief nonparties who are injured----
Senator Hawley. No, you are not willing to leave without
the ability to bind President Trump.
Professor Shaw. No, I think that----
Senator Hawley. Right? I mean----
Professor Shaw. I believe----
Senator Hawley [continuing]. When it is Biden, it is okay.
Professor Shaw. No.
Senator Hawley. When it is Biden, oh, it is a travesty. But
when it is Trump in office, it is a no-holds-barred, whatever
it takes, right?
Professor Shaw. I believe in a powerful----
Senator Hawley. It is just like that book that----
Professor Shaw. No.
Senator Hawley. What was it that President Biden's staff
said? We have got to do undemocratic, unconstitutional things
to save democracy.
Professor Shaw. I believe----
Senator Hawley. Why isn't this the same thing?
Professor Shaw. I believe in a powerful President. I do
believe in Presidential power. But power and constraint are not
at fundamental odds----
Senator Hawley. What is the principle? What is the
principle, the legal principle. You have referenced prudence.
You have referenced the judges you don't like. What is the
principle of when an injunction biding nonparties, which was
never done in this country before the 1960's--and let's see the
chart--the Trump chart, which was done really only once Trump
came into office for the first time. You don't think this is a
little bit anomalous? You don't think that is a little bit
strange? Do you----
[Poster is displayed.]
Professor Shaw. A very plausible explanation----
Senator Hawley [continuing]. Think this is good for the
rule of law?
Professor Shaw [continuing]. Senator, you have to consider
is that he is engaged in much more lawless activity than other
Presidents, right? That----
Senator Hawley. You don't think----
Professor Shaw. You must--can see that is----
Senator Hawley. This was never used----
Professor Shaw [continuing]. A possibility.
Senator Hawley [continuing]. Before the 1960's, and
suddenly Democrat judges decide, we love the----
Professor Shaw. No.
Senator Hawley [continuing]. Nationwide injunction. And
then when Biden comes to office, no, no----
Professor Shaw. It's Republican appointees as well,
Senator. And the 1960's is where some scholars begin--sort of
locate the beginning of this----
Senator Hawley. Can you identify one----
Professor Shaw [continuing]. But others----
Senator Hawley [continuing]. Before then?
Professor Shaw. Mila Sohoni, who's another scholar of
universal injunctions, suggests 1913 is actually the first.
Senator Hawley. Oh, okay. So----
Professor Shaw. There were others in the 1920's.
Senator Hawley. The republic endured for 150 years before--
--
Professor Shaw. So----
Senator Hawley [continuing]. There was a nationwide
injunction.
Professor Shaw. Well, the Federal Government was doing a
lot less until 100 years ago, so I'm--you know, there's many
things that have changed in the last 100 or the last 50 years.
This is----
Senator Hawley. So long as it is a Democrat President
office, then we should have no nationwide injunctions. If it is
a Republican President, then this is absolutely fine,
warranted, and called for.
Professor Shaw. That is not----
Senator Hawley. How can our system of law survive on those
principles, Professor?
Professor Shaw. I think a system in which there are----
Senator Hawley. Is that blind?
Professor Shaw [continuing]. No meaningful constraints on
the President is a very dangerous system of law----
Senator Hawley. That is not what you thought----
Professor Shaw [continuing]. And I'm----
Senator Hawley [continuing]. When Joe Biden was President.
Professor Shaw. I think every President----
Senator Hawley. You said----
Professor Shaw [continuing]. Needs constrained and must be.
Senator Hawley. That is not what you said.
Professor Shaw. Absolutely.
Senator Hawley. You said it was a travesty for the
principles of democracy, notions of judicial impartiality, and
the rule of law. You also said----
Professor Shaw. The Supreme Court, Senator, agreed----
Senator Hawley [continuing]. When Joe Biden was President--
wait a minute, wait a minute.
Professor Shaw [continuing]. 9-0 with me on that case----
Senator Hawley. You also said----
Professor Shaw [continuing]. To be clear.
Senator Hawley [continuing]. When Joe Biden was President,
you said the idea that anyone would forum shop to get a judge
who would issue a nationwide injunction was just ``judges
looking like politicians in robes.'' Again, it threatened the
underlying legal system. People were just trying to get the
result they wanted. It was a travesty for the rule of law. But
you are fine with all of that if it is getting the result that
you want.
Professor Shaw. Sir, the Supreme Court agreed unanimously
with me in that case, right? There was no standing. The case
should never have been allowed to proceed.
Senator Hawley. Wait, wait, wait. What case?
Professor Shaw. And the combination of parties without
standing and the single----
Senator Hawley. No, no, no, no, no, no, no.
Professor Shaw [continuing]. Judge division----
Senator Hawley. No, no, they did not. They did not issue a
ruling on the nationwide injunction. You----
Professor Shaw. No.
Senator Hawley [continuing]. Criticized the injunction
nationwide. Listen----
Professor Shaw. Issued in a case where----
Senator Hawley [continuing]. We could go round and round on
this.
Professor Shaw [continuing]. No one had standing.
Senator Hawley. Here is the thing. We have now gone 6
minutes, and Senator Kennedy had you for 6 or 7. You couldn't
identify a single principled basis.
We all know the truth here, which is it is not just you. It
is most of my colleagues over here on this side of the aisle,
who I respect a great deal, and they were raising very
principled objections to the nationwide injunction just 6
months ago, maybe 9 now. And you are probably right.
My point is, is that all that has changed in 9 months is
the occupant of 1600 Pennsylvania Avenue. And I realize that my
colleagues on this side of the aisle very much dislike that
individual, and I realize that you think that the rulings that
he has lost are fundamentally sound. We might grant all that. I
disagree with all of that, but we can put that to one side.
The question we are talking about here is, should judges,
single judges, district court judges, be able to bind
nonparties who are not in front of them? And you used to say
no. Now, you say yes. Let's be consistent. I would just suggest
to you our system of government cannot survive if it is going
to be politics all the way down.
Professor Shaw. Can----
Senator Hawley. Thank you, Mr. Chairman.
Professor Shaw. Can I briefly respond?
Senator Hawley. Sure.
Professor Shaw. I mean, you invoked democracy a couple of
times there, Senator. Judges are part----
Senator Hawley. I quoted you.
Professor Shaw. Judges are part----
Senator Hawley. I quoted you for that.
Professor Shaw [continuing]. Of our system of democracy.
Democracy is just--is not as simple as majority rule. Judges
have always served something of a----
Senator Hawley. You would have it be as simple----
Professor Shaw [continuing]. Counter majoritarian function.
Senator Hawley [continuing]. As majority rule. When you get
the majority you like, you are for the nationwide injunction.
When you don't, you are not.
Chair Schmitt. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
I am going to give you the opportunity that I often found
absolutely precious when I was arguing before a panel of judges
and couldn't get my answer out. I am going to give you some of
my time to just say what you were going to say to Senator
Hawley.
Professor Shaw. Thank you, Senator.
Senator Blumenthal. I can't interrupt you.
Professor Shaw. Okay. Thank you. Thank you, Senator.
Senator Kennedy. I will take some of your time.
Professor Shaw. You know, I started to say this.
Senator Blumenthal. By the way, we are good friends, so it
is not personal.
Professor Shaw. Well, maybe I will just finish what I
started saying at the end, which is in a number of the
questions today, there has been this embedded premise that
there is something democratically troubling about judges
issuing these nationwide injunctions constraining the
democratically elected President. And I guess I would just say
in response that, you know, we have a constitutional democracy.
So we do--the people are sovereign and that's--you know, that
sovereignty flows from the people. And we do choose our elected
representatives, but obviously, we choose our Representatives
in Congress, passes--Congress passes statutes, the President
signs them. And many of the rulings we are talking about were
predicated on executive branch violations of statutes that
Congress passed. So the rulings in many ways are about
protecting and reinforcing democracy.
And then finally, I'll say that, you know, courts are part
of our democracy, right? They have served this rights-
protecting and democracy-facilitating function from basically
the beginning, whatever the original design of the constitution
was. And it is not undemocratic or anomalous for courts to
sometimes strike down acts of the President or of Congress when
they conflict with the fundamental law, which is the
Constitution, which in our system, courts have long had the
primary role in enforcing.
Senator Blumenthal. And in fact, just as a footnote to this
conversation, Congress has an obligation to follow the
Constitution too, correct?
Professor Shaw. Absolutely. The President does, Congress
does, every official State and Federal takes an oath to uphold
the Constitution, but where that oath is--does not appear to be
fully honored by one or more other actors in government,
sometimes courts do need to step into the breach. I think that
is what we have been seeing.
Senator Blumenthal. And I can't remember exactly what that
chart said, but so far in the lawsuits have been--that have
been brought, the administration or the President has lost, I
would say a vast majority of times. Is that correct?
Professor Shaw. The vast majority, yes, Senator.
Senator Blumenthal. And I want to ask a somewhat open-ended
question because I have to confess, as attorney general of the
State of Connecticut, I probably succeeded--I can't name in
which cases--obtaining a nationwide injunction. Then-attorney
general Schmitt sought more than----
Chair Schmitt. You started it. Is that your admission?
[Laughter.]
Senator Blumenthal. Sought more than a dozen nationwide
injunctions against the Biden administration. Then-attorney
general Moody also sought numerous nationwide injunctions. This
is a tactic, and it is a well-founded one that attorneys
general, litigants, and others have used again and again and
again. And it shouldn't be a partisan issue. Nationwide
injunctions shouldn't be a partisan issue. And when I say they
did it, I am not being accusatory. I confess I did it. And I
don't know about then-attorney general Whitehouse. He can speak
for himself. But it should not be a partisan issue, should it?
Professor Shaw. I agree that it shouldn't be and that--but
of course, yes, it has been. I mean, I think that despite the
somewhat heated exchange I was just having with Senator Hawley,
I do think that we don't want judges to be sort of driving the
train of policymaking. And there are absolutely--there may be
points and there may be contexts in which it does feel as
though some fundamental change to the way judges consider
nationwide injunctions, how much--there is some critique that
the merits have become the entire analysis and that some--you
know, there should be some prescriptions that are different
about the kinds of harms that should be--the way harm should be
evaluated or assessed. So I do think there are--again, back to
the sort of prudential point, there are absolutely reforms that
I think that there could be some----
Senator Blumenthal. Just to take--and I apologize----
Professor Shaw. Yes, no, please.
Senator Blumenthal [continuing]. For interrupting, but I am
running out of time.
Professor Shaw. Yes, sorry.
Senator Blumenthal. To take Senator Hawley's point about
looking for a principle, a jurisprudential lodestar here, maybe
we do need some refinement on a bipartisan basis to provide
some guidelines to district court judges, some of whom come to
work on their first day----
Professor Shaw. Right.
Senator Blumenthal [continuing]. And are presented with
litigation that determines whether or not kids get healthcare
or whatever in parts of the country they have never visited in
towns they don't even know how to pronounce.
Professor Shaw. Right. So--and whether that comes from a
rule change, Supreme Court guidance, something legislative, I
am not sure, but I think there could well be bipartisan
consensus around clearer standards that guide judges asked to
consider requests for nationwide injunctions.
Senator Blumenthal. And that would probably increase the
credibility of what courts do if they could point to standards
that were not just personal preferences or whims or, you know,
perhaps subconscious political leanings.
Professor Shaw. I agree with that, Senator.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Chair Cruz. Thank you. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman.
Professor, I do want to come to you, and I want to return
to the conversation about calling the Supreme Court justices
evil. You host a podcast, correct?
Professor Shaw. Yes, Senator.
Senator Blackburn. And that is called Strict Scrutiny,
correct?
Professor Shaw. Yes, Senator.
Senator Blackburn. Okay. You made those comments on your
podcast. And Mr. Chairman, I would like to submit the recording
of that podcast for the record.
Chair Cruz. Without objection.
[The information appears as a submission for the record.]
Senator Blackburn. Thank you, Mr. Chairman.
In that podcast, you referenced, as Senator Kennedy said,
to Justice Kagan an opinion, and you referred to the
conservative justices as, and I am quoting you, ``her evil
colleagues.'' That is something you said on Strict Scrutiny in
your podcast.
And you, in that same podcast, you made a reference to
Justice Alito. Do you recall that?
Professor Shaw. I don't recall that. And we certainly do
reference Justice Alito, so I believe that, but I don't
recall----
Senator Blackburn. Well----
Professor Shaw [continuing]. Specifically what.
Senator Blackburn [continuing]. Your comment there was that
he was an ``abject misogynist.'' So since this is your podcast
that you hosted and this was your opinion on that podcast,
would you like to provide explanation about why you think
conservative justices are evil and why you would think Justice
Alito was a misogynist? Do you care to explain yourself?
Professor Shaw. I would have to look at the transcript,
Senator. I think that the dismissive approach to sex equality
arguments in the Dobbs case was deeply concerning. One
paragraph in the opinion suggests that there is no sex equality
problem with abortion restrictions or prohibitions. I think
that is deeply wrong. And in the more colloquial sort of mode
of a podcast conversation, that is probably what I intended to
convey, that he discounted very serious sex equality concerns.
Senator Blackburn. But you were angry. You were angry, and
you let your emotions get the best of you is basically what you
are saying.
Professor Shaw. I don't think I'm saying that, Senator. I
was having a conversation, and I am sure I was criticizing
Justice Alito. We frequently do on my podcast.
Senator Blackburn. Okay. Would you call that lack of
respect?
Professor Shaw. As--in the context of a podcast, I--we
frequently--I will stipulate that we frequently demonstrate a
lack of respect for writings of the Supreme Court justices,
yes.
Senator Blackburn. Well, that is good to hear that from
you, that you have that admission of guilt, so thank you for
that.
I have got a question for the entire panel. There was
discussion about Section 1507 and protesting outside of
justices' residence. And I have got a bill, the Protecting Our
Supreme Court Justices Act, and it would deter intimidation of
Supreme Court justices. And in the exchange Senator Cruz had
earlier, he referenced that purposeful intimidation.
This would change--it would increase the maximum term of
imprisonment for violation of Section 1507 from 1 year to 5
years, and increasing the maximum jail time for a protester
under 1507 is, I think, an effective way to deter this
intimidation of our justices. So I would like to hear from each
of you on this.
Professor Blackman, I am going to come to you first, and
then just a very quick, short answer from each of you.
Professor Blackman. Sure. I think it's a good idea. I think
it should be enforced vigorously as well. We mentioned Judge
Kacsmaryk before. He has had several death threats against him
that resulted in plea bargains, so I think there's a serious
problem that needs to be addressed with enforcement.
Senator Blackburn. Okay. Professor Shaw?
Professor Shaw. You know, I think that any law that also
touches protected First Amendment conduct would need to be
scrutinized carefully so I would need to take a look. I'm not
prepared to take a position here.
Senator Blackburn. So you think violence outside of a
justice's----
Professor Shaw. No, no, this is about protest outside of--
--
Senator Blackburn [continuing]. Intimidation.
Professor Shaw. Okay. So, violence, absolutely. I mean, if
we're talking about increasing penalties for violence, I would
absolutely support that----
Senator Blackburn. Okay.
Professor Shaw [continuing]. Yes.
Senator Blackburn. Great. Professor?
Professor Alicea. I certainly think we need to carefully
scrutinize the level of violence and the threats against
Supreme Court justices and other judges, as we saw when there
was a threat against Justice Kavanaugh's life, right, an
attempted threat against him and his family, so it underscores
the seriousness of the issue, and I think it's important for
Congress to take a look at this.
Senator Blackburn. Thank you. Thank you, Mr. Chairman.
Chair Cruz. Thank you. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I kept hearing one
of my colleagues accusing you, Professor Shaw, of disliking
nationwide injunctions only when it is applied to Democratic
Presidents. He tried so many times. That is not what you said.
That is certainly not what I heard. What I heard you say was,
in those instances where there is a single judge in a district,
that can lead to forum shopping, judge shopping, which is
exactly what happened in Amarillo, Texas. And you said that is
something that Congress could address. I think that is a fair
depiction of what you testified to. Is that correct?
Professor Shaw. Thank you, Senator. Yes, that was in my
written testimony, and I think that I did----
Senator Hirono. Well----
Professor Shaw [continuing]. Confirm it today.
Senator Hirono [continuing]. So I had introduced a bill to
Stop Judge Shopping Act, which would require suits seeking
nationwide relief against the enforcement of Federal law to be
filed in the D.C. District Court. And I explained at the time
that I introduced the bill that this court, ``hears the large
majority of cases involving challenges to Federal agency
action, and its judges are experts at deciding these cases
impartially.'' That is one of the ways that we can address the
issue of forum or judge shopping, which you did address once
again today, correct?
Professor Shaw. Yes, Senator.
Senator Hirono. Yes, I wish we could take that bill up.
So, you know, this attempt of my colleagues to continually
attack the Democrats as somehow not wanting judges who decide
cases based on objective facts, application of the law, as
opposed to having some kind of ideological ax to grind is
really more something that they have a problem with apparently
than anything that we Democrats stand for.
Once again, Professor Shaw, there was a suggestion today
that case assignments in D.C. is happening in a way that is
statistically impossible. And I think this only serves to point
out that maybe the person who made this allegation doesn't have
enough awareness of statistics or hasn't read the rules in the
way cases are assigned in D.C. Do you have any response to the
allegation that someone is stacking the decks against the Trump
administration in this court, the D.C. District Court?
Professor Shaw. Right, Senator. So I've heard both that
critique that Judge Boasberg is getting a disproportionate
share of the cases and also the kind of opposite critique that
the motions panels in the D.C. Circuit have been more favorable
to the Trump administration than random chance would produce.
You know, statistically unlikely events do sometimes occur, and
I think it very unlikely that there is anything untoward
resulting in the assignments either of the district court or
the court of appeals level here in D.C.
Senator Hirono. I have to thank you for pointing out how
many cases. Yes, there have been over 200 cases filed to stop
this President from, in my view, abusing his power and engaging
in illegal acts. And frankly--and I think Mr. Blackman also
suggested this, as did you, Ms. Shaw, that if we don't like
this President to be sued, then we in Congress should enact
laws that allows him to do whatever the hell he wants.
So why don't we let him ignore the appropriations of this
Congress? Why don't we let him stop certain grants from being
issued? Why don't we let him go after Harvard and any other
school that he doesn't like? Why don't we let him go after law
firms that take positions that he doesn't like? Why don't we
let him do that if we don't want him to get sued? I think that
is a rhetorical question, but certainly we could do that.
Thank you, Mr. Chairman.
Chair Cruz. Thank you. Senator Schiff.
Senator Schiff. Thank you, Mr. Chairman.
Ms. Shaw, I wanted to ask you about some of the threats we
are seeing on the judiciary, but let me preface it by quoting
the President, who has called Federal judges who rule against
him communists. He has called them lunatics. He has called them
monsters. He has said that they hate the United States. Of
course, he called for the impeachment of Judge Boasberg, said
the court system is radicalized and incompetent. His advisor,
Stephen Miller, has threatened to suspend the writ of habeas
corpus if judges essentially don't fall in line. And as a
result, we are seeing judges' lives threatened and their family
members' lives threatened.
Let me start with a threshold question in terms of a
President making these personal attacks on judges for ruling
against him or against the policies of the administration. Have
we any experience in our history with this? I mean, there have
been Presidents, of course, who have been deeply disappointed
in judges they have appointed. And of course, many of these
judges ruling against Donald Trump are people appointed by
Donald Trump. But have we ever seen a President make these kind
of sustained and personal attacks on members of the judiciary?
Professor Shaw. Senator, look, I would say that, obviously,
tension between--sometimes very heated tension between elected
officials and judges, Presidents and judges who rule against
them is nothing new. But I agree with you that there is
something different about the tenor of the rhetoric that we are
hearing today. And I think that some of the specific
suggestions--and maybe I'll offer a couple of examples.
One, I do think that including family members of judges in
the attacks on judges' rulings is something that, to my
knowledge, we have not previously seen members of public office
engage in. The proposals to impeach, right? So there's been
rhetoric, but also actual resolutions introduced in the House
to impeach Federal judges for the substance of their rulings is
also something that I don't think we've seen. We've obviously
impeached Federal judges before. That's a constitutional remedy
for very serious misconduct, bribery, corruption. Obviously, if
the judges engage in treason, bribery, and other high crimes
and misdemeanors, impeachment is the remedy. But we've never
seriously entertained the possibility of impeaching judges for
the substance of their rulings, and so I do think that those
threats represent sort of a new escalation that is deeply
concerning.
Senator Schiff. Well, I certainly agree. I tried one of
those judicial impeachment cases of a judge named Porteus, and
it was for bribery and other like serious offenses, certainly
not for upholding the law or the Constitution or having a
different view of the law or Constitution than a President.
In terms of the family members, it is not just the
President's criticism, but at least while he was serving as a
special employee, Elon Musk was pushing out these threats
against members of Judge Boasberg's family, I think tweeting
out or retweeting content identifying who the children are or
where they work. And that is just amplifying the danger to
these family members.
Tell us a little bit about this phenomenon now of people
sending pizzas to judges and the implicit threat in that.
Professor Shaw. Well, I mean, I think it's--this is also
something that I don't think we've seen before, right? There is
clearly some kind of coordinated effort to seek to intimidate
Federal judges and their families by sending pizzas,
communicating the message that their residence, their addresses
are known. And some of the pizzas bear the name of the murdered
son of district judge Esther Salas from New Jersey. And the
message there, I think, is a very clear one of very serious
threat. And I think judges are taking that threat--and the
marshals are as well from the reporting that we've seen--very
seriously.
Senator Schiff. And last question, if you could help,
Professor, put this in a broader context for us because this
attack on judges and the judiciary isn't happening in
isolation. We've seen the President now turn on Leonard Leo
because these ultraconservative Federalist Society-approved
judges are not proving right wing enough for the President. But
this comes in the context of the administration also going
after law firms. It seems very much a part of a concerted
effort to attack the rule of law and using the law to defend
people's rights. Tell us a little bit about the broader
context.
Professor Shaw. I do think that attacks on judges and
attacks on law firms are of a piece. They seem designed to seek
to neutralize sources of countervailing authority and
opposition to this administration. And if law firms can't take
on unpopular causes because they are scared to run afoul of the
President, and if judges are scared to rule against the
President, then we really have lost any meaningful check on a
President.
And as I said in my opening remarks, I think if the
Constitution is committed to a single principle, it is limits
on power, right, no absolute power. And I worry that we are on
a path toward few, if any, meaningful limits on the President.
Senator Schiff. Thank you for your testimony today and for
speaking truth to power.
Professor Shaw. Thank you.
Chair Cruz. Thank you, Senator Schiff.
I will also note that when it comes to rhetoric against
judges, that it was Democratic leader Chuck Schumer who stood
on the steps of the Supreme Court and threatened the Justices
by name. And one of many left-wing commentators who has
amplified that message is a fellow named Ian Millhiser, who
when the leak of the Dobbs opinion happened, he tweeted out,
``The draft Roe opinion appears to be as bad as expected, but I
am glad it leaked because this leak will foster anger and
distrust within the irredeemable institution that is the
Supreme Court of the United States.''
And I guess he decided that rhetoric was not overheated
enough because then he tweeted, ``Seriously, shout out to
whoever the hero was within the Supreme Court who said, F
it''--although he did not abbreviate that--``let's burn this
place down. That is the angry, unhinged language from the left
that has been directed at the court when they dislike the
decisions.
I want to thank each of the witnesses for joining us today.
I want to thank Senator Schmitt for co-chairing this joint
Subcommittee hearing. Written questions for the record can be
submitted by Senators up till June 10 at 5 p.m., and the
witnesses are asked to respond to any written questions for the
record by 5 p.m. on June 17.
And with that, this hearing is adjourned.
[Whereupon, at 4:40 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61716/pdf/CHRG-
119shrg
61716-add1.pdf
Submitted by Chair Cruz:
Poster 1......................................................... 2
Poster 2......................................................... 3
Submitted by Senator Blackburn:
Transcript from Strict Scrutiny Podcast, audio transcript........ 4
Submitted by Senator Whitehouse:
Citizens for Responsibility and Ethics in Washington (CREW),
statement..................................................... 5
[all]