The scene is near perfect in its portrayal of a total doofus trying to act cool among a decidedly cooler crowd.

Which brings us to Judge Lawrence VanDyke.

On Thursday, the 53-year-old judge, who sits on the U.S. Court of Appeals based in San Francisco, wrote an opinion dissenting from the majority’s decision not to rehear a case en banc – meaning a rehearing by the full court. The case was about two Christian-owned spas in Washington state with a policy of allowing in only “biological women” and not men or, in the court’s words, “preoperative transgender women.”

The state forced the owners to ditch the biological-women requirement as a violation of a Washington law prohibiting sexual-orientation discrimination, and the spa owners sued, claiming a violation of their First Amendment rights of speech and religion. A trial judge dismissed the suit because the anti-discrimination statute was a neutral, generally applicable law – meaning it passed constitutional muster as applying to everyone, discriminating against no one. The owners lost on appeal and again on their request for a rehearing.

Not all the judges agreed on the denial of rehearing. There were three dissenting opinions, including VanDyke’s. Here’s how it began:

“This is a case about swinging dicks.”

I’m sorry, what?

VanDyke (yes, that’s his name) figured his language would ruffle feathers – and did it ever. Many of his colleagues lambasted his use “of vulgar barroom talk” and wrote that “it ignores ordinary principles of dignity.” One judge said simply, “We are better than this.”

VanDyke, though, seemed committed to the idea that “woke regulators and complicit judges” were doing serious harm to “real women and young girls,” so he doubled down: “The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary.”

Plenty of federal judges write “colorful” opinions, especially now, when blunt and forceful language from the bench feels truly necessary to emphasize how wrong and largely illegal so many of our president’s actions have been. Accusing the administration of being “pernicious” and “cringe-worthy” or engaging in “gamesmanship or grandstanding” or issuing “blatantly unconstitutional” orders packs a satisfying wallop. In any era, though, there’s good reason for judges to write clear and compelling and just flat-out entertaining opinions. They increase the likelihood that ordinary people will actually read and understand them – or at least that reporters will cover and explain them well.

There’s a contrary view, of course. Plenty of judges and academic types have said that anything informal or spicy risks damaging the dignity of judges and the authority of opinions and courts. Why do you think they wear black robes? In a 2021 article, University of Wisconsin Law School Professor Nina Varsava wrote, “a judge’s efforts to please, entertain and persuade can interfere with fundamental judicial duties, including those of impartiality and candor, and can compromise the legitimacy of the adjudicative process.”

That seems a stretch, but truth be told, even great judges sometimes go overboard. Last November, for example, conservative U.S. Court of Appeals Judge Jerry Smith dissented from his colleagues’ decision to put Texas’ rejiggered electoral map on hold, and he lost his temper, calling the author of the majority opinion “an unskilled magician” who prefers “living in a fantasyland.” Groaners can come from the left as well. U.S. District Judge Jed Rakoff is one of the judiciary’s best writers, but in 2014, after an appeals court forced him to approve a lawsuit settlement between the Securities and Exchange Commission and Citigroup, he wrote, “That Court has now fixed the menu, leaving this Court with nothing but sour grapes.”

Being appropriately clever on the bench is surely a skill, and Judge VanDyke’s biggest mistake was to be inept. Maybe he thought that his vulgarity would put him in good stead with the vulgarian-in-chief should an opening occur on the U.S. Supreme Court. Maybe, in his own way, he was trying to sound cool. Whatever the reason, all he ended up doing was to draw attention from his stated purpose.

And to give us all a good laugh.

Now, even judges are acting like cowards.

For a while there, they inspired us to believe that the center would hold against the Trump administration’s relentless lawbreaking. When law firms were extorted, scientific research defunded, immigrants deported illegally, or protestors gunned down dead, federal judges stood up, spoke out, and ruled the administration’s conduct “pernicious” and “cringe-worthy,” “arbitrary and capricious, and just “blatantly unconstitutional.” Most judges are inspiring us still.

Yet, last month, they folded. Not in a big way, not in way that attracted much attention, but in a manner that shows even they – our ostensible finders of fact and truth – can succumb to Trump’s harebrained war on knowledge.

Federal judges may act as if they know everything, but they need a lot of help. Take science. Probably few of them are schooled in science, let alone experts in it, yet many legal cases turn on arcane concepts of, say, physics or chemistry or engineering. So judges rely on lawyers and their experts to show them the ropes, but many also do their own research. That’s where the Reference Manual on Scientific Evidence comes in.

The manual is a collection of the best thinking on everything from DNA to neuroscience to engineering practices and methods. It has been around for more than 30 years, commissioned by the Federal Judicial Center – the research and education arm of the federal judiciary – and has gone through four editions. The most recent two were developed with the National Academy of Sciences, Engineering, and Medicine, which advises the nation on science and technology.

Not to belabor the point, but this is a top-notch resource. Its chapters are written by the nation’s premier experts, reviewed by a panel of equally qualified exerts, and, if those experts disagree – as they sometimes do – a third level of review resolves the dispute.

As one federal judge told me, “It’s like going to Einstein for a quicky on relativity.”

In the latest edition, a particular chapter has suddenly provoked an uproar. You can probably guess what the chapter is about: climate science.

At the end of January, 27 Republican state attorneys general – scientific luminaries like Ken “Vaccines Kill” Paxton of Texas and John “Coal Is Clean” McCuskey of West Virginia – sent U.S. District Judge Robin Rosenberg of Florida, the director of the Federal Judicial Center, a letter. It demanded that she and her organization retract the chapter, which acknowledges the existence of climate change, as “flawed,” “inappropriate,” and “putting the judiciary firmly on one side of some of the most hotly disputed questions in current litigation.” That side, presumably, is the wrong side.

On February 6, Judge Rosenberg gave her thoughtful response: OK!

The dispute didn’t end there, of course. On February 19, the AGs wrote a letter calling the National Academy’s refusal to erase the climate-science chapter from its website “unacceptable” and reminding the academy that it received taxpayer support. On February 27, congressional Democrats wrote a letter demanding that the Federal Judicial Center restore the chapter in its version of the manual. On March 2, twenty-eight experts who wrote other chapters in the manual published a letter lambasting the AGs’ first letter as “a direct challenge to the independence of the federal judiciary and an attack on a thoroughly vetted exposition of climate science that those attorneys general do not like.”

So many letters. Such an obvious solution.

More than just part of the judiciary, the Federal Judicial Center is run by judges – Chief Justice John Roberts at the top, seven judges with him on the board of directors, and one judge, Robin Rosenberg, running the place. Lest anyone need reminding, judges and the courts are the core of an independent branch of government. Yeah, it’s “the weakest branch” and funded by Congress and all that, but it should heed no master other than the law – and surely no politicians masquerading as lawyers at the head of state attorney general offices.

Hundreds of judges, on the political left and right, are reminding us every day of what that means, upholding the rule of law against this reckless administration and trying to call it to account – sometimes at the risk of their personal safety. What must they think of the appeasers on the bench?

There is only one correct resolution to this kerfuffle: Restore the climate chapter as the experts wrote it. And there is only one right answer to the AGs’ letter demanding its erasure, only one response that any judge worth her gavel would have given: Hell no.

Tonight, shortly after 9 pm, President Donald Trump will strut to the dais in the U.S. House of Representatives and deliver the State of the Union address. Before him, among the senators and House members and cabinet secretaries and assorted guests, will sit the Chief Justice of the United States and at least some of his Supreme Court colleagues.

Oh, to read their minds.

They surely still stew over the scathing nonsense that was Trump’s response to their decision on Friday striking down the administration’s tariffs. The president called it a “terrible decision” and said he was “absolutely ashamed” of the six justices who joined it “for not having the courage to do what’s right for our country,” skewering them as “embarrassments to their families,” tools of foreign “slimeballs” and “very unpatriotic and disloyal to our Constitution.”

Will the justices scowl as he speaks tonight? Will they, like Samuel Alito sixteen years ago, mutter in protest after the president sends an inevitable zinger their way? Maybe, like a few Democrats last year, they’ll hold up little paddles saying “False!” or “You’re Out of Order!” We can only hope.

The better bet: They’ll gaze in black-robed dignity, content with the near certainty that Trump is in a panic over how they might stymie him next and, maybe more important, the knowledge that, for the first time in memory, their lower court colleagues have official permission to lead the PR fight on the judiciary’s behalf.

Earlier this month, the ethics committee of the Judicial Conference of the United States – the federal courts’ policy arm – gave trial and appeals court judges the go ahead to, in effect, stick it rhetorically to the noxious likes of Deputy Attorney General Todd Blanche, who declared “war” on “rogue activist judges;” his boss, Pam Bondi, who filed a baseless misconduct complaint against U.S. District Court Chief Judge James Boasberg; or Trump and the dozens of congressional sycophants who have demanded impeachment of jurists who rub them the wrong way. Judges – Democratic and Republican appointees – have done well issuing opinions that scold their critics for gratuitous jibes, but the moment calls for more: Defense of the rule of law in places and circumstances where everyone can hear it.

In an advisory opinion, the ethics committee addressed the “Ethics Considerations” for “Public Speech and Civic Engagement by Judges.” These sorts of missives typically come when someone subject to the codes of conduct for judges and judicial employees asks for advice – in this case, guidance on when judges can speak publicly.

A bunch of code sections bear on the question, and the general rule is, don’t shoot your mouth off on, say, politics or current cases. Faith in the courts would not survive otherwise. More specifically don’t rattle “public confidence in the integrity and impartiality of the judiciary,” avoid “the appearance of impropriety,” and don’t “advance…private interests.” But one rule encourages judges to “speak, write, lecture, and teach on both law-related and nonlegal subjects, ” so long as they don’t “compromise their impartiality.”

This allows judges a public voice off the bench, and some have taken full advantage. It’s not obvious from the opaque language, but read in the context of, say, Blanche’s war on judges, the new advisory opinion goes significantly farther. It says the codes “leave room, in at least some circumstances, for the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law, whether or not they rise to the level of persecution” of any particular judge.

As Professor Stephen Vladeck has pointed out, there’s plenty new in this and other parts of the opinion. First, it stresses over and again that the judges’ code supports “advocacy for the rule of law and judicial independence.” It says, in effect, yeah, we’re siding with judges who slammed you, Pam Bondi and Stephen Miller, for calling decisions that don’t go your boss’ way a “judicial insurrection” and worse. Second, the opinion counsels judges to “exercise caution when expressing their personal views to preserve the integrity of the judiciary and to promote public confidence in the courts.” That sounds like a constraint on judges, but it’s also a reminder that their criticisms carry extraordinary weight and deserve attention. Third, the opinion says it’s A-OK for judges to write opinions that accuse the administration of being “pernicious” and “cringe-worthy” or engaging in “gamesmanship or grandstanding” or issuing “blatantly unconstitutional” orders. Nothing wrong with a little color.

That the fifteen judges who sit on the ethics committee felt compelled to issue this opinion speaks volumes about the administration’s contempt for them and their colleagues and the rule of law. The Supreme Court justices are well aware of this contempt, and while Chief Justice John Roberts has protested in mealy mouthed response, justices like Sonia Sotomayor have to some degree given as good as they get. If anything, as a few lower-court judges have suggested, they have not gone far enough – especially when they are not even bound by formal rules of ethics.

Now, with trial and appeals court judges permitted a stronger public voice, the pressure is off a bit. The State of the Union starring Donald Trump may still be a spectacle, but the justices can sit back, relax, and enjoy the show.

“I’m tired of hearing judges today complain about threats to judicial independence. These judges need to get over themselves,” he wrote. As for their supporters – the “cultural elites” – they “vigorously defend district judges against criticism – unless those judges live in Texas or Florida. They strenuously condemn forum shopping – but not if the courts are in Boston or San Francisco. They strongly oppose the impeachment of judges – when those judges are named Thomas or Alito.”

This is pretty standard fare from Ho, a Trump appointee whose big talk and showy opinions have propelled him to prominence as a far-right appeals court judges. What’s striking, though, is where his words appeared and how the judge is viewed. Ho was writing in a law journal rather than a court opinion, and he’s high on lists of President Trump’s potential Supreme Court nominees. This shows he’s auditioning for the job of justice, critics contend, playing to a president fond of calling liberal judges “sick” and “monsters” and “very dangerous for our country.”

Maybe the critics are right. But if so, Ho – and the ambitious judges like him – are going about it all wrong.

His look-at-me act has been playing since well before 2017, when Trump picked him for the U.S. Court of Appeals in New Orleans – the Fifth Circuit. Even in high school, he acted and danced. An acolyte of Ted Cruz, he succeeded the now-U.S. senator as Texas solicitor general and grabbed headlines by defendingthe addition of “under God” in the state’s Pledge of Allegiance and persuading the Supreme Court to reinstate a death sentence that the Fifth Circuit had reversed. As a judge, his opinions – often dissents – have rung with slaps at his liberal colleagues. In dissenting to the Fifth Circuit decision striking down Mississippi’s anti-abortion law, the case that became the Supreme Court’s 2022 death knell for Roe v. Wade, he spent his entire opinion berating Carlton Reeves, the trial court judge who had handled the case.

The point is that Ho’s behavior isn’t really an act. It’s a display of who he is: a rock-ribbed, conservative creature of politics with a knack for high-profile attacks that thrill constituents. It doesn’t necessarily make him a bad judge, but history tells us that even in the era of Trump, relative fame and controversy rarely gets you on the Supreme Court.

The last remotely famous figure who became a top-court justice was probably Earl Warren, in 1953. Since then, most justices have ascended to the bench from beyond the public eye. On the left, judges like ultra-liberal Stephen Reinhardt in California were constantly touted as potential justices but, as lightning rods, never made it. On the right, it was well-known judges like Robert Bork. Of the current justices, Elena Kagan was the dean of Harvard Law School, and Clarence Thomas was head of the U.S. Equal Employment Opportunity Commission, but even they didn’t draw much public attention before they went on the court.

Yet, it looks as if a host of current lower-court jurists are auditioning, jumping up and down to persuade the president to promote them. What else could Aileen Cannon, the Florida judge who killed the stolen-documents case against Trump, or Matthew Kacsmaryk in Texas, who banned the abortion pill mifepristone, be doing? Like Ho, they are partisans – acting as political players because that is merely who they are. And truth be told, their partisanship is probably why they were picked in the first place, a political strategy that both sides can get away with because the public doesn’t pay much notice to a lower-court nominee.

It’s different for Supreme Court hopefuls, of course, which is why so many have come to the Senate confirmation process with low public profiles. The people who choose them know who the judges are, and they have sent all the right signals through their rulings, but they can claim that they’ll just follow the law and call balls and strikes without making too many senators laugh.

It’s possible the world has changed so much under Trump that none of this applies any longer, that if he gets the chance, the president we’ll nominate someone just to provoke outrage – and a submissive Senate will go along. That seems unlikely. Maybe it’s the appalling scenes of ICE thuggery in Minneapolis or the lunacy of investigating the chairman of the Federal Reserve, but more lawmakers seem hesitant now to knuckle under – especially when they may get what they want without the drama of a provocative pick.

The good news is that you probably won’t see the likes of James Ho on the Supreme Court any time soon. The bad news? We’re stuck for a while with the court we have.

Sound familiar?

The place was Houston, not Minneapolis, and the officer was a county cop, not an ICE agent. But the facts of the case are remarkably similar to Wednesday’s fatal shooting of 37-year-old Renee Nicole Good. And in that earlier case, decided unanimously only eight months ago, the U.S. Supreme Court said it was far from clear that the county police officer had acted reasonably in gunning down the driver.

Recognizing that there’s still a lot we don’t know and all that, if the killing of Renee Good ends up in court, as it surely will, last year’s Supreme Court decision should prompt two words to pop into the ICE agent’s head: Uh oh.

First, a little background. The Constitution’s Fourth Amendment protects people against unreasonable searches and seizures, and a police shooting being considered a “seizure,” it violates the Constitution if not “objectively reasonable.” What’s reasonable is a judgment call, and courts are required to make that call by assessing “the totality of the circumstances.”

In 2016, Harris County Deputy Constable Roberto Felix Jr. was patrolling a Texas highway when he spotted a car with a record of unpaid tolls. He flashed his lights and the car, a rental driven by Ashtian Barnes, pulled over. After some pointed chitchat, Felix, his hand on his gun, ordered Barnes out of the car. Barnes opened the door, but instead of getting out, he started to drive away, and Felix jumped on the doorsill, pulled his gun, and shot Barnes dead.

Barnes’ mother sued Felix for violating her son’s Fourth Amendment rights. The federal trial court acknowledged its obligation to determine whether the shooting was reasonable, but it explained that when deadly force is involved, considering the “totality of the circumstances” means focusing on the situation “at the moment” the officer feels threatened – in this case, the two seconds after Felix perched on the car doorsill – nothing before or after. Surely, at that moment, Barnes could have reasonably believed he was a goner, so the judge tossed the case, and the appeals court – which had come up with this odd rule years before – upheld the decision.

The Supreme Court would have none of it. Totality of the circumstances “has no time limit,” Justice Elana Kagan wrote for the court. “While the situation at the precise time of the shooting will often matter most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”

This seems pretty obvious, but it’s not hard to see why the two lower courts narrowed the test. They’re based in perhaps the most conservative, tough-on-crime areas of the country – Mississippi, Louisiana, Texas – and focusing on the most perilous moment makes it easier to argue that the cop justifiably fought for his life, especially during a traffic stop, which Justice Brett Kavanaugh pointed out in a concurring opinion is “fraught with dangers to the police officer.”

In any event, the justices ordered the lower courts to try again while applying the broader test. Will it make a difference? There’s reason to believe it will – in this case as well as in the Minneapolis debacle.

The broader test allows for all sorts of excellent questions. In the Texas case, how frightened could Felix have been of a guy suspected of not paying tolls, a guy who quickly pulled over and generally cooperated? He wasn’t, say, a suspected murderer leading a 100-mph car chase. More important, what the heck was Felix thinking, leaping onto the doorsill of a moving car? Of course he was in danger – he put himself in danger. That seriously undermines any justification for deadly force. How about stepping off rather than shooting the guy dead?

In the Minneapolis case, the ICE agent seems on even weaker ground. Assuming he and his fellow masked men had good reason to stop Good and order her out of the car, assuming they were there to enforce the law rather than to provoke, assuming he was actually standing in front of Good’s car as it started to move – all assumptions contradicted to varying degrees by multiple videos of the scene – why did the agent put himself in so much danger that he felt compelled to kill Good? Even Justice Department policy says that’s a dumb idea.

Where all this can go legally is unclear. There are a host of serious obstacles to any lawsuit or prosecution against the ICE agent – not the least of which is the Trump administration’s alarming but predictable effort to protect him and block any investigation of the tragedy.

Whether in a court of law or in public debate, however, Daniel Patrick Moynihan’s admonition holds true: We’re entitled to our opinions, but not to our own facts. Even this Supreme Court, as deferential as any to a president’s point of view, has told us so.

“I have difficulty understanding how a member of the bar can state unequivocally that this is a constitutional order. It boggles my mind,” said U.S. District Judge John Coughenour, who was appointed by President Reagan. “Where were the lawyers when this decision was being made?”

Good question. Several other judges were similarly flabbergasted, and like Coughenour, blocked the president’s order. That’s because the Constitution’s 14^th Amendment says anyone born in the United States and subject to its jurisdiction – meaning essentially its laws – is a citizen. The language clearly excludes the children of, say, foreign diplomats, but just as clearly covers the kids of immigrants here temporarily or without proper papers. Those kids, the judges pointed out, must obviously comply with U.S. law. They are citizens.

Yet the prosecutors plow on. The U.S. Supreme Court agreed earlier this month to hear their case, and without, you know, actual law to rely on, the lawyers support their view with legislative history, statements from members of Congress who debated the 14^th Amendment in 1866. The problem is that textualists – people who, like the current conservative justices, profess to interpret laws based on their text alone – pooh pooh legislative history. As the right’s patron saint, Antonin Scalia, put it, “We are governed by laws, not by the intentions of legislators.”

With the approach of quoting what a few dead senators said about the law unlikely to fly at the top court, foes of birthright citizenship might consider another tack. Here’s one.

It’s based on the qualifications for becoming a member of Congress. They require you to be at least a certain age, live in the state you represent – and be a U.S. citizen. Whether you meet these qualifications is totally up to the Senate or House, as the case may be, and history is full of accusations that people have fallen short – the qualifications of more than 600 members of Congress have been challenged over the years. And they were never challenged more often than during Reconstruction – right when the 14^thAmendment was adopted.

Here’s where it gets interesting. According to Trump’s executive order, the amendment “has always excluded from birthright citizenship” children born in the United States to unauthorized immigrants or lawful, temporary immigrants. According to new research from Amanda Frost and Emily Eason at the University of Virginia, under that definition, more than a dozen senators and representatives who served between 1865 and 1871 may not have qualified as U.S. citizens – and yet none of them was ever challenged on that basis or had his immigration status questioned, even during perhaps the most dangerously partisan era of our history.

Here are some details. To prove citizenship, the Trump order would require anyone born in the United States of immigrant parents to provide “acceptable evidence” that at least one of those parents was living in the United States legally and permanently – “domiciled” here – “at the time of said person’s birth.” Frost and Eason found eleven members of Congress who were American-born children of immigrants. Four of the eleven were born only a couple of years after their parents arrived, casting doubt on whether the parents were domiciled here at that time. What’s more, for over a dozen other members, there are no records of where their parents were born, or in some cases who their parents were, meaning they may have been here illegally and with no intention of staying when their little legislator was born.

Congressman Samuel Scott Marshall, for example, served seven terms, was a candidate for Speaker of the House in 1867, and engaged in plenty of partisan fights. Yet he was born less than two years after his parents arrived from Ireland, and they expressed no desire at the time to remain here. William Farrand Prosser, another contentious character who virulently opposed Chinese immigration, spent two terms in the House, and his Irish parents welcomed him into the world less than three years after arriving. They also gave no signs of planning to stick around.

If Trump’s definition of citizen were commonly accepted in 1866, these or any of the other dozen or so senators and representatives with suspect immigration status would have surely been grilled about their qualifications to serve, and maybe bounced from Congress. Yet that didn’t happened, which is not bad evidence that, as with so many things, Trump and his minions are just making it up.

Conclusive? Not even close. And it won’t change the minds of birthright citizenship’s critics. It’s just another reason to be pretty sure that the 14^th Amendment means what it says – and that the Supreme Court will agree. If it doesn’t, well, that would really boggle the mind.

I’d offer another, though it’s surely unintended: the reawakening of grand juries.

On Thursday, a grand jury in Norfolk, Virginia, refused to re-indict New York Attorney General Letitia James on charges of lying to banks for a discounted mortgage rate. A judge had tossed the first indictment, finding the blundering prosecutor who had obtained it wrongly appointed. That’s two strikes against the government, with the Justice Department mulling the risk of a third, all of which is almost unheard of – even when, as in this case, the motive for the indictment is revenge against Trump’s political enemy rather than punishment of an actual crime.

Grand juries of ordinary citizens decide whether there is enough evidence – “probable cause” – to formally charge, or “indict,” someone for a crime. Obtaining an indictment is astonishingly easy, so easy that Sol Wachtler, the former Chief Judge of the New York Court of Appeals, told the New York Daily News in 1985 that “by and large” prosecutors could get grand juries to “indict a ham sandwich.” It is easy because the standard of proof is low, prosecutors alone present evidence, and decisions to indict need not be unanimous. Only 11 of 162,000 proposed federal indictments were refused in 2010, the last year statisticswere available.

Yet over the past several months, the Justice Department has failed to obtain indictments at least seven times in Washington, D.C. alone. In one case, prosecutors tried and failed three separate times, forcing them to reduce to a misdemeanor the charges that Sidney Lori Reid assaulted government agents by getting in their way as she videotaped them and then resisting after they pushed her against a wall. Reid was acquitted of the misdemeanor at trial.

In another case, a grand jury refused to indict Edward Dana for threatening Donald Trump after Dana was arrested for pulling a light off a restaurant wall and, drunk, shouted about “killing the president, killing anyone who stands in the way of our Constitution.” In a third case, a grand jury kicked felony assault charges against Sean Dunn, who famously hurled a Subway sandwich at immigration officers. So much for indicting a ham sandwich. Dunn was later charged with a misdemeanor and also acquitted at trial. Similar fiascos have occurred in Chicago, Los Angeles, and elsewhere.

From earliest America, this is what has happens in times of fury against government overreach. In 1734, when British prosecutors accused New York printer John Peter Zenger of libel for publishing an editorial critical of the royal governor, they failed to obtain an indictment. They failed again after charging leaders of protests against the Stamp Act of 1765 and a third time when a grand jury refused to indict editors of the Boston Gazette for libel the following year. Then, as now, these were ordinary citizens telling those who would coerce their obeisance, enough.

Despite setbacks, though, prosecutors’ near strangle hold over grand juries remains. Sol Wachtler argued for scrapping them and instead holding preliminary hearings before a judge to determine whether a suspect should stand trial. It’s not a crazy idea. About half the states make grand juries optional, and two states – Pennsylvania and Connecticut – don’t use them except to investigate. They’re unnecessary in misdemeanor cases. But in federal cases involving a felony, the Constitution requires them, and you can forget about amending the Constitution for pretty much anything, let alone a provision that at least in theory protects people against abuses of government power.

Now we’re learning that it’s not just theory. Thanks to the flash of good born of Trump administration ineptitude and overreach, we are reminded of our power to say no.

The people who sit on grand juries can say no to any weak case – and not just one presented by an unqualified prosecutor at the behest of a president seeking pure vengeance. The people who serve in the military can say no to any illegal order – and not just one that leads to the violence porn of boats being blown from the water. And most important, all of us who can vote – before too long it will be our turn to say no to all this White House madness.

Last week, another federal judge, Mark Wolf, found a way around the Ponsor problem.

He quit.

Wolf wanted to speak out, too – especially against Donald Trump – and judicial ethics constrained him from a full-on warning about the president’s “existential threat to democracy.” The quitting, revealed in Wolf’s Atlantic magazine essay, drew broad and ecstatic praise – finally, a federal judge, a Ronald Reagan appointee no less, sticking it to Trump! – but here’s the thing.

Few federal judges were as effective as Wolf at holding the government’s feet to the fire, and other judges have done a pretty good job recently of blasting presidential transgressions, in opinions and in court. It makes you wonder: Don’t we want these people to stay on the bench?

It’s a truism that judging and opining publicly on politics – or, obviously, current cases – don’t mix. Faith in the courts would not survive otherwise. For federal judges, that principle animates several canons of the judicial Code of Conduct: Don’t rattle “public confidence in the integrity and impartiality of the judiciary,” avoid “the appearance of impropriety,” and don’t “advance…private interests.” But one canon encourages judges to “speak, write, lecture, and teach on both law-related and nonlegal subjects, ” so long as they don’t “compromise their impartiality.”

The rules leave plenty of leeway, but honorable judges surely have a good feel for what crosses the line. Ponsor’s biggest mistake was probably to needle one of his bosses – Alito – when critics were calling on said boss to recuse himself from cases then before the Supreme Court involving January 6 rioters. It suggested he was trying to skew the outcome. Earlier this year, Ponsor did write another op-ed, this one condemning physical threats against the judiciary, and no one seemed to mind.

We’re still learning what Mark Wolf has in store, though his Atlantic piece suggested he’s willing to go scorched earth on our president. In a nutshell: “The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out. Silence, for me, is now intolerable.” At the least, this sort of language from a sitting federal judge would provoke the likes of right-wing Congressman Jim Jordan and Senator Chuck Grassley to demand an ethics investigation, as they did in response to federal judges’ anonymous complaints to the New York Times about the Supreme Court.

What’s striking, though, is that Wolf spent the better part of four decades on the bench speaking out – often harshly – against government officials for their assault on the rule of law. Most famously, he held hearings that lasted almost a year on the FBI’s failure to tell federal prosecutors that Boston mobster James (Whitey) Bulger and murderer Stephen (the Rifleman) Flemmi were bureau informants. He laid out the facts in a scathing, 661-page opinion, and at Flemmi’s sentencing, said there was “a long pattern of the F.B.I.” ignoring the Constitution’s requirement that it be “candid with the courts” and prosecutors. His actions prompted a congressional investigation. In 2023, Wolf testified before the Senate Judiciary Committee about the Supreme Court’s mishandling of Justice Clarence Thomas’ failure to disclose extravagant gifts.

Plenty of other district court judges – Republican and Democratic appointees alike – have also found ways to give public officials a piece of their mind and condemn Trump’s threat to democracy. “An American president is not a king,” wrote Judge Beryl Howell in Washington, D.C. “It has become ever-more apparent that to our president, the rule of law is but an impediment to his policy goals,” said Seattle Judge John Coughenour. “That’s just not right in our country, is it, that we run our agencies with lies like that and stain somebody’s record for the rest of their life?” said Judge William Alsup in California about the illegal firing of a federal employee on baseless charges of misconduct.

These judges were speaking in written opinions or in open court – not in the Atlantic or on PBS or MSNBC. Their words carried weight. They were heard. And because they came from sitting judges, they and similar pronouncements had profound impact, in some cases blocking or at least stalling the summary deportation of a legal immigrant, the termination of someone’s hard-earned federal job, or the ripping of citizenship from an American-born father.

As Ponsor and others have demonstrated, judges can address controversial issues through the media, but it’s risky. That risk makes them anomalous among public officials. Governors and senators and representatives are generally allowed to shoot off their mouths about anything they choose. Administration functionaries are now expected to act as presidential attack dogs. Even Supreme Court justices are free to deliver provocative speeches and receive pricey gifts because, unlike lower court judges, they are not bound by meaningful rules of ethics.

So it’s understandable that Mark Wolf would choose to remove his muzzle. He’ll be 80 years old in a few days. He was on the bench for 40 years. As a senior judge in a district with relatively few trials, his job was probably no longer consuming. A flurry of interviews and stories suggests he has gained a national voice.

But media attention is fickle, notoriously difficult to hold. Will we continue to listen? Will judges trust him to speak for them? Will he make a difference? There was rarely any doubt that as a judge he could speak, be heard, and do justice. For that reason, Americans will miss him on the bench.

This rule – the major questions doctrine – was new, only a year old, but the decision prompted Justice Amy Coney Barrett to explain in a separate opinion that it wasn’t really new at all. It was just a “common sense” application of her conservative colleagues’ bedrock commitment to interpreting any statute based on its text alone – so-called textualism. They were merely giving the statute “context.”

She was, let’s say, being disingenuous.

The truth is that nothing in the statute – the HEROES Act of 2003 – which gives the Secretary of Education authority to “waive or modify” student loans, says it doesn’t apply when the consequences are enormous. The six justices in the majority made that part up. Barrett couldn’t admit it, though, because she would have had to contradict her bred-in-the bone textualism and almost everything she had written as a law professor before joining the court.

So she’s a hypocrite, for sure. Turns out, though, she has lots of company. As the student loan case revealed, justices – on the right and the left – can shift from judicial restraint and textualism to an expansive view of the law and back again, depending on which side holds power. Most days, it does not matter that much; it’s just part of the law’s evolution. But at this moment, with conservatives’ newly elastic view of statutes and the Constitution dominating the Supreme Court and a lawless president in the White House, it matters a lot. Just how much may soon become apparent as the court ponders last week’s arguments against Trump’s sweeping tariff regime.

Most of us probably associate an expansive reading of the law – known pejoratively as judicial activism – with the ideological left, and judicial restraint with the right. That was surely accurate from the mid-1950s to 1970, when the Supreme Court under Justice Earl Warren was finding constitutional rights that many conservatives were surprised to learn existed. But as Professor Richard Re explains in a new article, there’s no inherent link between conservatives and restraint or liberals and broad discretion to interpret the law.

In reality, he writes, each side must engage in a little of both: restraint, because “for law to exist at all, something must be settled,” and discretion because flexibility is required to make the law work sensibly. The balance shifts depending on which side controls the Supreme Court and the courts generally. When, say, conservatives are on the outs, they restrain liberals with the letter of the law, but read the law more flexibly when they have the power to implement their own ideological agenda. Liberals do the same. It’s more complicated than that – a lot can depend on the issue at stake or the need to be consistent, and sometimes an ideological opposite will join the majority just to stay relevant – but that’s the gist.

Re traces how this has worked over the past seventy years or so, with liberal justices exercising broad discretion during the Warren Court era but more restraint as conservatives under chief justices Warren Burger and the William Rehnquist took over and grew adventurous. Republican presidents’ appointment of moderate justices like Sandra Day O’Connor and Anthony Kennedy and the absence of a significant majority on the court muddled the pattern a bit, and conservatives, steeped in Warren Court criticism, stayed relatively restrained.

Now, for the first time in decades, the court is not a justice or two away from flipping ideologically – and the right is taking gleeful advantage. Roe v. Wade? Gone. Chevron, the 1984 case in which a conservative court ceded interpretations of the law to administrative agencies? Gone. Rules against spewing greenhouse gases or exempting for-profit religious groups from Obamacare or committing crimes while serving as president of the United States? Gone, gone, gone.

This is obviously not judicial restraint, and in fairness, you could argue that conservative justices are just making the most of an opportunity that lefties on the Warren Court enjoyed for decades. Elections have consequences and all that.

But right-wing justices are flexing their ideological muscles at the worst possible moment. They are giving laws broad new meaning just as Donald Trump seems convinced that some laws have no meaning at all. In potentially tragic ways, their agendas align – the president demands more power, and the Supreme Court seems hell bent on giving it to him.

We may better understand the state of play when a decision in the tariffs case comes down. The president claims he can impose sweeping tariffs under the International Emergency Economic Powers Act, despite its, at best, ambiguous language. Will the court cite the major questions doctrine to block Trump, given that the tariffs are every bit as consequential as student loan forgiveness? It’s possible that the justices will find a way to appease him, but oral arguments last week suggest that not even this court will go that far.

In any event, if we had any doubt that, when it comes to Trump’s actions, the current court is out of step with mainstream notions of the law, the lower courts are setting us straight. Hundreds of district and appeals court decisions have blocked executive orders deporting immigrants, firing federal workers, and depriving the poor of food. The decisions have come from conservatives and liberals in equal measure – with judges appointed by Ronald Reagan and Trump himself writing some of the most powerful and stirring opinions lambasting the president.

In 2023, Joe Biden was just trying to wipe away student loans. Now, for this president and this Supreme Court, it’s the rule of law itself that seems the target.

On Wednesday, the Justice Department airbrushed essential facts from a memo recommending a sentence for January 6, 2021, rioter Taylor Taranto – and put the memo’s authors on ice. Taranto, like all Capitol attackers, received the president’s clemency for his transgressions that day but was found guilty two years later of showing up near former President Barack Obama’s home with a couple of guns and a ton of ammunition – after Trump posted Obama’s address online.

In the memo, two prosecutors recommended a stiff sentence – 27 months in prison – for Taranto, arguing that his zeal among “a mob of rioters” and promotion of conspiracy theories about the attack showed the gun conviction should be “viewed with the backdrop of political violence in mind.” His protests, in other words, made plain what he planned for Obama.

It is a sin in Trump world to cast the Capitol attack in a negative light, however, so the DOJ put the prosecutors on leave, withdrew the sentencing memo, and filed a new one that stayed mum about January 6 – or Trump’s posting of Obama’s address.

Now, the bounced prosecutors surely deserve our sympathy, the feckless Justice Department our outrage, and the White House our ridicule for pretending a Trump-inspired insurrection never happened. But our fears should arise from the damage this behavior, this disregard for the facts and truth, inflicts on the courts and their ability to do justice.

Ask most any federal judge what the hardest part of the job is, and he or she will say sentencing. “It is the most important event in a [convicted] man’s life,” Judge Jed Rakoff in New York has told me, “and it should be one of the most important events in your life because you’re determining this person’s entire future.”

In 1987, the weight of that task and the risk of getting it wrong helped lead to the federal sentencing guidelines, mandatory formulas for ensuring that like criminals committing the same crimes would get similar punishments. In a way, the guidelines made sentencing easier – feed the facts into the formula and a sentence pops out – but failed to account for the obvious differences in people. Judges could no longer tailor punishments to the individuals before them, and they rebelled, prompting the Supreme Court in 2005 to make the guidelines nonbinding.

With federal criminal laws growing in number and complexity, sentencing became even more challenging – and creative. In 2006, Rakoff knocked down to 42 months a sentence that, under the guidelines, would have meant life in prison for a minor participant in a financial fraud. In 2015, Judge Carlton Reeves in Mississippi prefaced the sentencing of three teenagers convicted of a horrific, racially fueled murder with a long and extraordinarily moving lesson, speaking as if he were a stern father about how “a toxic mix of alcohol, foolishness, and unadulterated hatred caused these young people to resurrect a nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget.” From 2017 to 2022, Judge Martha Vazquez in New Mexico, determined not to “throw away” the life of a drug addict struggling to recover, tried three times to sentence a bank robber to five years in prison and intense rehab rather than the mandatory 15 years – and was reversed by an appeals court three times before the Supreme Court finally agreed with her reading of the law.

These judges and countless others have labored to learn what makes the criminals before them tick, to delve into their lives and see them as humans with vastly different experiences before condemning them to prison. Many of the criminals deserve harsh punishment. Others do not. But the best judges, the judges kept awake at night as they seek to tell the difference, gather as much information as they can about every life in their hands.

In that task, they get help from lots of sources. An important one is the pre-sentence report, a document that summarizes a federal probation officer’s investigation into a defendant’s background. Another is sentencing memos – one each from the defendant and the government. When one of those sources omits essential facts, leaves out, say, a defendant’s background of violence against political figures, judges are being deprived of what they need to make a just decision. When a sentencing memo first includes those facts and then scrubs them from a revised version, the judge is being treated with contempt.

It may have made little difference in Taranto’s case. Judge Carl Nichols knew of the DOJ’s shenanigans – he called the revised memo “extremely late breaking” and said he would unseal the original one – and both memos called for the same 27-month sentence. Nichols even gave Taranto a break, sentencing him to 21 months in prison, essentially time served.

The debacle, though, makes clear that prosecutors in this Justice Department will knuckle under to a ham-handed White House, even lie for it, despite the damage done to the rule of law. That’s not news: They lied to judges and ignored court orders in the several cases involving deportation of Venezuelan immigrants. What’s different this time, though, is how blatant and laughable the prosecutors’ behavior was. It’s evidence of this administration’s venality, but also of something more – a willingness to play judges and the rest of us for fools.

The wildcatters sued, arguing that the governor’s order had violated their property rights under the U.S. Constitution because their community was obviously “in a quiet, peaceable condition.” A federal judge agreed and blocked the order. In 1932, the case made its way to the U.S. Supreme Court, and the justices came down with a unanimous opinion upholding the decision below.

A governor, like the U.S. president, no doubt has the discretion to say when an emergency requires calling in the troops, the court wrote, but both chief executives must exercise “honest judgment” and act in “good faith.” In this case, “not only was there never any actual riot, tumult, or insurrection,” but even if the governor’s fears of impending violence and other trouble came to pass, they would have merely been “breaches of the peace” and nothing “remotely resembling a state or war.”

Sound familiar?

Judge Karin Immergut delivered a similar message in her decision last week to temporarily block the president’s order inflicting the National Guard on Portland, Oregon. In support, she relied on the Texas oil case, so far the Supreme Court’s definitive word on the issue. Yes, it dealt with a governor. Yes, it was not about the federal statute that sometimes allows presidential control over a state’s National Guard. Yes, the motives involved were different: The Texas governor wanted to boost the price of oil, Trump seeks more power and the humiliation of Democrats. But the Supreme Court made clear that the principles it demands – honest judgment and good faith – apply in both circumstances. How could they not? It still seems the least we should expect from our leaders.

Yet in the Portland case, the principles went AWOL.

Start with Trump’s October 1 Truth Social message about Portland: “lawless mayhem… ANTIFA and the Radical Left Anarchists viciously attacking our Federal Law Enforcement Officers…Chaos, Death and Destruction!” None of it was true, as Trump surely knew.

In the days before the president ordered in the troops, “the protests (in Portland) involved around 20 or fewer people,” wrote Immergut (who, it’s worth noting, Trump nominated to the bench). Portland police “reported no incidents or disruptions outside the ICE facility except for a few individuals shining flashlights into drivers’ eyes.” Agreeing that the president has enormous leeway in deciding when things are out of control, she nonetheless pointed out that “ ‘a great level of deference’ is not equivalent to ignoring the facts on the ground.”

Trump’s lawyers argued that sending in the National Guard was still justified. They cited the potential for violence, but like the Supreme Court in the Texas oil case, the judge concluded that local police had so far shown they could handle it. What about violence in, say, Memphis or Chicago? Sorry, but “violence elsewhere cannot support troop deployments here,” she wrote. “The president’s determination was simply untethered from the facts.”

Trump’s loose relationship with facts has been a chronic problem, of course, and generally it has not mattered. It may, ultimately, not even matter here. The law allowing presidents to “federalize” state national guards uses broad and undefined terms, and despite its 1932 Texas precedent, this Supreme Court may agree with the administration that Trump’s discretion in interpreting those terms is absolute – good faith and honest judgment are beside the point. Even if the court rules against him, Trump could turn to the Insurrection Act – a hopelessly vague statute that gives presidents sweeping power to enforce the law in the United States with soldiers. Reining in presidential power under either law would take an act of Congress – which, to state the obvious, is not happening soon.

What can matter is that day by day, judge by judge, case by case, courts are making a public record of the facts – tested, proven facts – about what the Trump administration is doing. Not just a few courts but hundreds of them. Not on just a few issues but on all of them – deportations, budget cuts, firings of federal workers, vengeance on political enemies, military takeovers of cities. These are not internet videos or even news stories but legally vetted, authoritative accounts of what is happening right now.

Administrative officials and their mindless supporters will continue to deny those accounts, just as perpetrators of past scandals have done. But unlike those past scandals, where the truth was often in doubt, there is no mystery here. Deniability is not plausible; mistakes were made – and we know by whom.

A contemporaneous public record of such detail and breadth is unprecedented, so we can’t be sure that it will make a difference. The answer will come eventually – after next year’s mid-term elections, after the presidential election in 2028 – when we’ll have to decide whether good faith and honest judgment still matter, and whether Senator Daniel Patrick Moynihan had it right: We’re entitled to our opinions, but not to our own facts.

Dismissing Donald Trump’s lawsuits against law firms as “pernicious” and “cringe-worthy.” Rejecting his administration’s halt to funding university research as the “wrath of a government committed to its agenda no matter the cost.” Refusing to tolerate the government’s “gamesmanship or grandstanding” in illegally deporting immigrants.

This past week, we again saw the courts at their best – and, sadly at their worst.

On Tuesday, William Young, a federal judge in Massachusetts appointed by President Reagan, ruled that the Trump administration had violated free-speech rights by systematically silencing non-citizens with threats of deportation if they protested on campus in favor of Palestinians. His opinion was fierce, moving – and clever.

It began with a scanned image, a scrawled threat he had received in June that delivered a sinister message: “Trump has pardons and tanks. … What do you have?” His response “Alone, I have nothing but my sense of duty. Together, We the People of the United States – you and me – have our magnificent Constitution. Here’s how that works out in a specific case—”

Young then proceeded over 161 pages to lambaste Trump and his minions for trying to “strike fear” in protestors and their supporters. He berated immigration agents for wearing masks that were meant “to terrorize Americans into quiescence” and brought to mind “cowardly desperados and the despised Ku Klux Klan.” With an unequivocal response, he answered the question – “perhaps the most important ever to fall” within his jurisdiction – of whether noncitizens in the U.S. legally have free-speech rights: “Yes, they do.”

“The First Amendment does not draw President Trump’s invidious distinction,” he continued, “and it is not to be found in our history or jurisprudence…While the president naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience.”

Clear and timely and true, these are words of a judge at his best.

Now for the worst.

Judge Aileen Cannon. You remember her. She stalled and ducked and generally did everything within her considerable power to ensure that Donald Trump would never be held accountable for willfully absconding to Mar-a-Lago with classifed documents. Last week, it wasn’t what she did that drew notice, but what, as is her wont, she didn’t do.

On Monday, the Knight First Amendment Institute asked a U.S. appeals court to order Cannon to release special counsel Jack Smith’s report on his investigation into the documents case. The judge had tossed the case in July 2024 because, in her view, Smith’s appointment was unconstitutional. Smith appealed her decision but dropped the investigation after Trump’s 2024 election because presidents may not be prosecuted while in office. Smith did write the report, however, and submitted it to Cannon, but she blocked its public release because she did not want to prejudice other defendants named in the case – a case that she had dismissed, that Smith had dropped, that the Trump Justice Department will never pursue, and that is positively, absolutely dead.

So last February, the Knight institute first asked the judge to release Smith’s report because the public has the constitutional right to see court records. And surely these are important records to see. But Cannon has not responded. In fact, she has sat on the request for more than 220 days and counting. The institute argues, with good reason, that the delay is “manifestly unreasonably,” and has asked the appeals court to get involved.

The chances that the court will order Cannon to cough up the report are not high, because the institute must show that there is an indisputable right to the report and duty to hand it over and no other way to get it. But Cannon has not challenged the institute’s arguments. She has said nothing. How can we interpret her silence as anything other than more stonewalling by a political creature masquerading as a judge and beholden to Donald Trump?

I admire federal trial judges – so much that I have just come out with a book — Better Judgment — about them. They do the real work of the judiciary, having the last word in the hundreds of thousands of cases each year that Supreme Court grandees will never see. And at this perilous moment, many of them are about the only people in public life standing up for the rule of law against a lawless president. They are heroes.

They are flawed heroes for sure and, in some cases, deeply so. But by and large, Republican and Democrat, they are giving us hope, and they are doing it with dignity rather than rancor.

At the end of his opinion, Judge Young wrote that he hoped the author of the anonymous threat would find the opinion helpful and thanked him or her for writing. “It shows you care,” the judge concluded. “You should care.”

The charges’ impetus is “not revenge,” the president insisted, though everyone knows that it is. “It’s about justice, really.”

The case has landed before Michael Nachmanoff, a “Crooked Joe Biden-appointed Judge,” as Trump put it, and the question is what comes next. Will the judge, when surely asked, dismiss the case? If he does, will he speak to its vile origins, calling out the president for his alarming abuse of the justice system?

These questions brought to mind another judge, at a different but in some ways similar moment. He is a judge I write about in my book, Better Judgment. When faced with lies from public officials on an issue of profound importance, this judge called out the officials in words that at the time seemed right and inspiring. The words, tragically, came to naught. But to my mind they were what a judge should say, the type of thing that I hope Judge Nachmanoff will say – that we need all judges to say despite what the Supreme Court might do – when the time comes to put the officials who betray us in their place.

The excerpt from my book goes like this:

The plain truth of it was they were lying. A lot of voters knew it. At least some of the Mississippi lawmakers who had said aye to the bill probably knew it. Anyone who had been paying even casual attention to how the state of Mississippi had been treating women throughout its more than two-hundred-year history surely knew it. Yet no one— not the voters, not the lawmakers, not the attorneys who argued against it—was willing to suggest publicly that it was so. Except for Judge Carlton Reeves.

On March 19, 2018, the Mississippi legislature enacted a law that banned abortions after fifteen weeks of pregnancy. The authors of the measure said that the justifications for it were simple—to protect “unborn life,” yes, but more strikingly to protect women. “Abortion carries significant physical and psychological risks to the maternal patient,” read the law’s “findings of fact,” and these risks rose “exponentially” with the age of the fetus. Among them were “blood clots; heavy bleeding or hemorrhage”; “laceration, tear, or other injury to the cervix”; and “injury to the bowel or bladder.” Then there were the psychological harms: “depression; anxiety; substance abuse.” Evidence for any of these claims, and the fact that abortions were one of the safest medical procedures in the United States, was all but missing from these “findings of fact” because there had been no hearings on the measure, no public airing of whether it could withstand scrutiny of its claims, let alone its legal basis.

That scrutiny began the next day, though, when the Jackson Women’s Health Organization, the last abortion clinic in Mississippi, asked Reeves to temporarily block the law from taking effect while they prepared for a more extensive challenge. At a hastily arranged hearing that the clinic’s lawyers joined by phone, the judge picked up quickly on the absence of evidence for the antiabortion law’s claims. “So if they [the legislators] didn’t have hearings,” Reeves asked the state attorney defending the law, “how much deference should I give . . . any of the justifications that they set out, or their findings that they set out, in the statute?” The state’s lawyer said the judge should give them plenty of deference, but it was clear that Reeves was not persuaded. After noting that “a lot of stuff happens over there in the legislature that just should not happen, in ways that it should not happen,” Reeves ended the hearing and that evening issued his decision. He pointed out that the Supreme Court had long held, from Roe v. Wade on, that the Constitution protects a woman’s right “to have an abortion before viability” of the fetus—and fifteen weeks was clearly before viability—so the claim of Jackson Women’s Health Organization and their patients that the Mississippi law was unconstitutional would almost certainly succeed; a temporary restraining order (TRO) was granted.

Over the next several months, the judge and an ever-growing number of lawyers went back and forth over the legal mechanics of the litigation—setting the schedule, deciding what evidence to allow in, filing and responding to amended complaints—until on August 24, 2018, the clinic and its patients filed for summary judgment, a request that Reeves rule in their favor and block the antiabortion measure permanently without a trial because, in their view, the facts were undisputed and the law was on their side. On November 20 the judge came down with his decision. It was, most everyone knew, an easy case, given the clarity of the Supreme Court precedents on abortion, among the best known of any in the nation’s history. There was little doubt that Reeves would rule the Mississippi law unconstitutional and could not be enforced. The judge wrote as much in his opinion, but he asked an obvious question: “So, why are we here?”

Rejecting sophistry from the state’s legislators like the ban wasn’t really a “ban,” Reeves revealed the truth as he saw it: The state had passed a law “it knew was unconstitutional to endorse a decades-long campaign . . . to ask the Supreme Court to overturn Roe v. Wade.” He scolded the lawmakers for pretending to care about women’s health and the well-being of the unborn and minorities while the state led the nation in infant mortality, tolerated “alarming” poverty and maternal death rates, and curtailed health-care programs like Medicaid. In perhaps the opinion’s most memorable phrase, he wrote: “The Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.” It was, in other words, a lie.

Reeves went on to accuse legislators of perpetuating “the old Mississippi,” the one that in 1968 became the last state to allow women to serve on juries, that systematically sterilized Black women against their will—getting a “Mississippi appendectomy,” it was called. The one that in 1984 became the last state to ratify the constitutional amendment guaranteeing women the right to vote. He recounted Mississippi’s long history of denying its citizens’ constitutional rights with segregated schools, prohibitions on same-sex marriage, limits on the rights of Black people to vote, and a “secret intelligence arm” that enforced racial discrimination. Far from helping women and minorities, Reeves wrote, the state still seemed “bent on controlling” them. Near the end of his opinion, almost as an aside, the judge revealed a bit about himself and his view of his role as a judge. “The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court,” he wrote. “As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion.”

As sometimes happens with Reeves on controversial issues, his opinion provoked morality-fueled indignation. Although the US Court of Appeals for the Fifth Circuit affirmed his decision a year later, as legal precedent compelled it to do, James Ho, among the court’s most outspoken and conservative judges, took offense at Reeves’s criticism of Mississippi’s and the antiabortion movement’s claims to protect women and Black people. In a concurring opinion, Ho cited surveys, articles, and legal briefs ostensibly proving that many if not most women had long viewed abortion as “women’s oppression” and “an injustice against . . . female life.” He relied heavily on a startling 2019 concurring opinion, by Supreme Court Justice Clarence Thomas, that condemned abortion as “a tool of the eugenics movement,” used throughout American history to draw “the distinction between the fit and the unfit . . . along racial lines.” History, Ho concluded, must also “infect” abortion proponents “with the taint of racism.”

Judge Ho largely missed Reeves’s point—Mississippi could not credibly proclaim a desire to help women and Black people when it hindered them in so many ways—and Ho’s history was far off the mark as well. In this case, however, the troubling question soon became whether any of it would matter at all.

It would be too much to say that Judge Reeves saw it coming, but by the time he held a status conference on a sweltering day in June 2021, he knew it was at least a possibility. On May 17 the Supreme Court had dropped the first surprise, granting Mississippi’s request to consider the abortion case. Reeves held the conference to see whether a trial over making his injunction against the abortion ban permanent should wait until the justices ruled. An attorney for the Jackson Women’s Health Organization opposed the idea. The law as it stood said a measure was unconstitutional if it put an “undue burden” on the right to abortion, and “we just don’t think the standard is going to fundamentally change as a result of the current Supreme Court case,” the attorney explained, and so delaying the trial would be unnecessary. Reeves was not so sure. “Why wouldn’t it be prudent to just wait and see what they say?” The Supreme Court “took this case up for a reason,” he said. “It’s not a foregone conclusion that the court will not overturn its preexisting state of the law.” The trial would be postponed.

The second surprise from the Supreme Court came a year later. On May 2, 2022, a draft opinion overturning Roe v. Wade, the landmark 1973 decision establishing the right to abortion, was leaked to Politico. Millions of Americans hoped and prayed that the draft was a fake. It was not. On June 24 the justices delivered their final surprise, a 6–3 decision that reversed the rulings of Reeves and the Fifth Circuit in the Mississippi case and ended the constitutional right to abortion. “Roe was egregiously wrong from the start,” declared Justice Samuel A. Alito Jr. in the majority opinion.Another man, another decision determining how women may choose to manage their reproductive health. The irony of abortion law that so worried Reeves was alive and thriving.

When U.S. Supreme Court justices disagree with each other, they almost always do it with respect. As in, “I respectfully dissent.” It helps keep things friendly among people who may work together for the rest of their lives.

So when former Justice Stephen Breyer dissented from the majority opinion upholding President Trump’s travel ban in 2018, he wrote, “I respectfully dissent.” Same for Justice Elena Kagan in her dissent to the opinion gutting the Voting Rights Act in 2021. Justice Sonia Sotomayor was a bit testy about it, but in criticizing the majority for not stopping the deportation of non-Sudanese immigrants to Sudan, she wrote earlier this year, “Respectfully, but regretfully, I dissent.”

Then came Noem v. Vasquez Perdomo.

On Monday, the Supreme Court upended, without explanation, a judge’s order barring government agents from seizing anyone in Los Angeles who merely looks Latino. Not kidding. In a concurring opinion, Justice Brett Kavanaugh explained unhelpfully that it was OK for agents to do that because, if the person is a U.S. citizen, they will “promptly let the individual go.”

Sotomayor refused to permit this embrace of racial profiling go un-lambasted. Joined by Kagan and Justice Ketanji Brown Jackson, she wrote, “We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish and appears to work a low wage job.” And then, this: “Rather than stand idly by while our constitutional freedoms are lost, “I dissent.”

No “respectfully,” not even a “respectfully, but regretfully.”

Turns out this retreat from politesse has been building for a while – especially for Sotomayor. In Dobbs, the 2022 case overturning the right to abortion, she and Breyer and Kagan jointly wrote, “With sorrow…we dissent.” Sotomayor wrote opinions disagreeing with recent decisions that upheld a ban on gender-affirming medical care for minors, allowed kids to opt out of classes involving LGBTQ+ themes, and blocked lower-court injunctions that applied to an issue in all cases nationwide – and in each she wrote, “I dissent.”

Foregoing “respectfully” seems a subtle jab, but for the justices and others who care about what the court does and does not do, it reads as something like, “This decision is ridiculous, even dangerous.” The question is, does it matter?

By itself, maybe not. But it is not by itself. There are other uncommon ways people are using the process of law to resist the ridiculous and dangerous, and together they may amount to something consequential.

Consider what grand juries are doing.

Grand juries of ordinary citizens decide whether there is enough evidence – “probable cause” – to formally charge, or “indict,” someone for a crime. Obtaining an indictment is astonishingly easy, as the cliché, they could “indict a ham sandwich,” suggests. That’s because the standard of proof is low, prosecutors alone present evidence, and decisions to indict need not be unanimous. It is so easy that only 11 of 162,000 proposed federal indictments were refused in 2010, the last year statistics were available.

Yet over the past two months, grand juries have gotten feisty.

in Washington, D.C., the U.S. Justice Department has failed to obtain indictments six times. In one case, prosecutors tried and failed three separate times, forcing them to reduce to a misdemeanor the charges that Sidney Lori Reid assaulted government agents by getting in their way as she videotaped them and then resisting after they pushed her against a wall. In another case, a grand jury refused to indict Edward Dana for threatening Donald Trump after Dana was arrested for pulling a light off a restaurant wall and, drunk, shouted about “killing the president, killing anyone who stands in the way of our Constitution.” In a third case, a grand jury kicked assault charges against Sean Dunn, who famously hurled a Subway sandwich at immigration officers. So much for indicting a ham sandwich.

In Los Angeles, where federal felony cases were filed against 38 people arrested during protests of immigration raids in June, prosecutors have not done much better. A few cases have been dismissed, others settled, and only eight have led to indictments – with grand juries refusing to indict in some.

From earliest America, this is what has happens in times of fury against government overreach. In 1734, when British prosecutors accused New York printer John Peter Zenger of libel for publishing an editorial critical of the royal governor, they failed to obtain an indictment. They failed again after charging leaders of protests against the Stamp Act of 1765 and a third time when a grand jury refused to indict editors of the Boston Gazette for libel the following year. Then, as now, these were ordinary citizens telling those who would coerce their obeisance, enough.

For Supreme Court justices, resistance comes in the form of dissent – and the withholding of words of respect. Dissents matter. They have strengthened the right of free speech, shaped the fight against slavery and Jim Crow laws, and made progressive economic policies possible. Their impact typically takes time, but they often signal that the law has gone seriously awry. And the fiercer, the better.

Is all this anything? There is good reason to believe that it is. Because when the rare – failed indictments , dissents without “respectfully” – is suddenly not, something that matters is surely afoot.

Show me your hands! Show me your fucking hands! They had tried to be nice, tried to engage in civil conversation with this dumbass stoner stumbling down the Albuquerque sidewalk on a day late in January 2016, chin tucked to his chest against the cold, hands jammed into the pockets of his coat, determined in his heroin haze to act as if he were invisible and they were not even there. But the cops were getting impatient. Nervous. They feared that this whoever-he-was—this moron who like a cartoon character had minutes before slammed his van into a wall and then bounced it off a utility pole that sparked into flames and continued to drive until his vehicle jumped a curb and collided with a fire hydrant that stopped it cold—was carrying a gun. Now the situation had escalated, and the officers reached for their holstered weapons.

Show me your hands! Finally, slowly, the man pulled his hands from his pockets and held them out to his sides as if to find his balance. The cops grabbed him, searched him, cuffed him, took a loaded .22-caliber pistol out of his right pocket, and returned to the station with the man in the back seat. His name was Marc Dutch, and he needed a lawyer, a really good one. He got lucky: the public defender’s office assigned attorney Brian Pori to his case. Pori knew cops, had respected cops since his days as a public defender in high-crime Oakland, California, had taught him how dangerous their job could be. He also believed, after hearing what Dutch had done, that these cops in Albuquerque would have been 100 percent justified in taking Dutch out with a bullet.

“Thank you for not killing my client,” Pori told the police officers involved.

Over the following months, he grew surprisingly fond of Dutch. It would be too much to say that he saw himself in his client, but it would also not be so very far from the truth. Both men had come from hard backgrounds of abuse and alcoholism and had fallen into addiction themselves, and yet there was a determinative difference: Dutch had failed to find his way out. His life had been chaotic beyond even Pori’s belief. In 1987, when Dutch was four and living in Santa Fe, his father, who was bipolar, inflicted on him and his older brother the punishment of drinking beer until they were sick. At ten, he watched his mother flee for Illinois and his father take on the habit of smoking crack. At eleven, he got a paper route and used his earnings of twenty-five dollars a day to buy his father more crack. From thirteen to twenty, he bounced back and forth between his father’s and mother’s homes, smoking crack with his father getting addicted to methamphetamine and becoming homeless and remaining awake for days on end and having a nervous breakdown and being convicted of felony assault after brawling with roommates over a gun.

Then Dutch decided to rob banks. In 2005, while out of his mind on meth and crack, he pursued a two-week spree of heists at three savings and loans in Santa Fe and was convicted and sent to a federal penitentiary in Indiana. Released in 2010 and living again in Santa Fe, Dutch continued on a course of violent madness—more drugs, more crimes—until in 2015 he began to turn his life around. A buddy from prison got him a job with a construction company, Dutch became a supervisor, and he gained friends and respect and stayed clean as a member of Narcotics Anonymous.

Early in January 2016, at the end of a long work week, he received from his boss the usual envelope of cash for the employees Dutch supervised. This time, instead of paying them, Dutch drove to a casino and gambled through the night, blowing all the cash on blackjack. It was enough to throw him into a funk and back on meth and heroin. On January 27 he prepared to do a speedball—consecutive shots of the depressant heroin and the stimulant meth—but after injecting the heroin and not the meth, he took off in his van through the streets of Albuquerque and within blocks hit the wall that was his first stop on the way to his arrest and introduction to Brian Pori.

There seemed at first not much that the lawyer could do for Dutch; he was going to jail, no way around it. The feds would surely nail him—a felon in possession of a firearm and ammunition would get anywhere between seventy and eighty-seven months in prison under the sentencing guidelines. Not only that, Dutch was in the eyes of Uncle Sam a career criminal—convicted in federal court of committing three violent bank robberies in 2005. In 1984, during the Reagan administration’s tough-on-crime campaign, Congress had enacted the Armed Career Criminal Act to deal with concerns that a relatively few career criminals commit most offenses. The act imposed especially harsh punishment on those miscreants, a mandatory sentence that would keep them behind bars for a very long time: fifteen years. There was no room for a clever lawyer or a compassionate judge to concoct a lesser sentence.

Yet Dutch seemed to get lucky again. The spin of the court clerk’s wheel had put his case in the hands of Judge Martha Vázquez in Santa Fe. Pori played up the tragic circumstances of Dutch’s so-called childhood, but none of that would affect the problem of the career criminal act, so Pori raised a longshot argument. To qualify for sentencing under the act, someone must have committed at least three crimes on separate “occasions” rather than during a single episode. Dutch hadn’t done that, Pori explained. Instead, he had robbed three banks in one continuous spree while whacked out on meth and zero sleep, with no mental ability to stop between each robbery and consciously decide to go on to the next.

Vázquez bought the argument, concluding that the government had not met its burden of proving that the bank robberies had occurred on different occasions. She would not apply the career criminal act to Dutch but instead would sentence him to only five years in prison, below the guideline range, because of his drug addiction, his mental illness, and his “very difficult and painful childhood.” She also ordered a heavy dose of drug treatment and testing—in prison and during a three-year period of supervised release. “I have great faith in you,” she told Dutch during his sentencing hearing on October 12, 2017. “I believe that you can do this. . . . Don’t give up, Mr. Dutch, I believe that you will do well.” Maybe he would have done well, had the Tenth Circuit Court of Appeals given him the chance. The government appealed Dutch’s sentence, insisting that he was exactly the kind of person that the career criminal act was meant to cover, and in a terse and testy opinion the appeals court agreed. Of course Dutch had the mental ability to stop between each of the bank robberies, the court wrote, ordering Vázquez to “vacate” Dutch’s sentence and “resentence him consistent with this order and judgment.”22

There seemed no doubt that Dutch would soon be headed to prison for at least fifteen years, but Pori refused to concede. Aside from the lawyer’s persistence, two things were going for Dutch. One was the ambiguity of the word “occurrence” in the Armed Career Criminal Act. The other was the sloppiness of the prosecutors and judge who had put Dutch behind bars for both committing and “aiding and abetting” the three bank robberies in 2005. It gets complicated, but essentially nothing in the record from that case made clear what crimes Dutch had actually done. Had he held up three banks or, say, “aided and abetted” three robberies with a single act like loaning his accomplices a car—in which case Dutch had committed a crime on only one “occasion” rather than three? It may have been the technicality of all technicalities, but under the career criminal act, it could matter. Pori gave the argument a shot.

On August 29, 2019, Vázquez held a second sentencing hearing, and at first it did not go well for Dutch. The Tenth Circuit had issued its order, and not even she was inclined to question it. Dutch would have to do the fifteen years, but she wanted to give him hope, and for the next twenty minutes or so she spoke to him from the bench like a stern friend. As the judge prepared to pronounce the sentence and wrap up the hearing, she asked Pori whether he had anything to add. He didn’t really, nothing that he hadn’t already said, but he figured, what the hell. Stumbling a bit, Pori repeated his argument about the Armed Career Criminal Act.

“Well, I tend to agree with you,” Vázquez said, “but we were both considered to be wrong by the Tenth Circuit.”

“This was an okiedoke opinion,” Pori responded, referring to the document the appeals court had issued.

“A what?”

“An okiedoke; you know, run through it and don’t publish it and achieve what you want to achieve by fiat.” Wary of making things worse, Pori doggedly plowed on, trying to articulate what he had come to believe was no longer a mere technicality but a matter of fairness and principle. Sparring at times with the prosecutor, and with Vázquez listening intently, Pori sensed the momentum turning like a slack tide.

“Okay, I hate to inconvenience all of you, but I need to review this a little bit more, then,” Vázquez interrupted. “I need to give this some more thought.”

It did not make any difference at first. Almost a month later they were back in court, with the judge ascending the bench carrying a script that dutifully carried out the Tenth Circuit’s order and imposed on Dutch a sentence of fifteen years. Pori would not let up, however, and as Vázquez turned his arguments over again in her mind, she found it impossible to refute. “I completely understand what my place is in the judiciary,” said the judge. “I have utmost respect for the position that I hold and that is held by the Court of Appeals.” Yet she could not in good conscience impose on Dutch the draconian punishment that the government requested and the higher court demanded. Her original sentence of five years would stand. As Dutch and Pori stood before Vázquez, they burst into sobs and tears. The government appealed yet again, and of course the Tenth Circuit judges—testy before but furious now—ordered Vázquez yet again to comply with their orders.

The rule-bound, frighteningly formal, black-robed bureaucracy of the federal judiciary may leave little room for serendipity. Even so, it does happen. And as Vázquez prepared to sentence Dutch again, this time to the full fifteen years, a Georgia inmate without a lawyer asked the US Supreme Court to hear a case that raised an issue that was remarkably similar to the one that the judge had been struggling with. In 1997 the inmate, William Dale Wooden, pleaded guilty to ten counts of burglary for robbing ten separate storage units in a single night. Almost two decades later a court decided that the crime spree qualified him for sentencing under the Armed Career Criminal Act as a felon in possession of a firearm when he was caught with a hunting rifle in his house. Like Dutch, Wooden argued that the ten burglaries had occurred on a single “occasion,” and like the Tenth Circuit, the Court of Appeals for the Sixth Circuit rejected that view of the law, ruling that it was enough for the ten burglaries to have happened at separate times.

When the Supreme Court agreed, on February 22, 2021, to hear Wooden’s case, all bets were off in Dutch’s case. Depending on how the court ruled, it could mean nothing for Dutch or change the course of his life. Either way, putting off his sentencing seemed the prudent move, and so the parties waited. On March 7, 2022, Vázquez sat reading at her desk in chambers, preparing for a series of sentencing hearings scheduled back-to-back that morning. Dutch was helping wire lights for a Facebook facility in Los Lunas, New Mexico, as an ap- prentice electrician, a job he had been assigned while waiting on supervised release for his resentencing. Pori had left the public defender’s office for private practice almost three years earlier and was working madly on a brief due the next day. It is unclear who heard first, but at some point that day all received the startling news they had long awaited—the word that the Supreme Court had issued its decision.

Despite all the hypothetical musings during oral argument, despite the total uncertainty about how the court would come out, the justices had managed to agree on what the deceptively simple term “occasion” means. They had ruled in favor of Wooden, and the decision was unanimous, 9–0.

As Vázquez had ruled in her first sentencing order, timing alone was not enough to determine an “occasion,” the Supreme Court justices said in their Wooden opinion. Crimes committed at different times could still have occurred on one occasion if they took place near each other, in similar ways, in a short period, or as parts of one episode rather than tasks separated by substantial effort and reflection. The decision seemed broad enough to cover the circumstances of Dutch’s bank robberies, and the sparse record of those robberies left prosecutors with a near impossible task if they tried to prove what Dutch had done. So they gave up.

On November 9, 2022, Vázquez imposed on Dutch her original sentence of five years. After decades of challenging the judges above her on the law, sometimes successfully, more often not, and on this occasion after severely testing their patience, she had won. With the help of a persistent lawyer, Vázquez had been proven right by the highest court in the land.

On the appointed day in November 2011, Judge Jed Rakoff put his black robe over a gray suit and a bright tie and, with his three young law clerks in tow, mounted the flight of metal stairs to the so-called robing room. “This is going to be fun!” he said on the way up. His deputy rapped hard on the door to the courtroom and bellowed, “All rise!”

In the majestic chamber top attorneys and moneyed bankers packed the rows of pews to the left. Regulators up from Washington sat among them in sober clumps of twos and threes. On the right, in the jury box, reporters scribbled in their notebooks. Dozens of late arrivals leaned against the walls, drawing nervous glances from marshals positioned at the door. All were there to see whether Citigroup, a bank at the heart of the 2008 financial crisis, would finally be held accountable for the pain it had caused America.

Rakoff climbed the three steps to his massive wooden bench, eased into a high-backed black chair, and took a sip of coffee from a Styrofoam cup. “So I’m reminded,” he began, “of Humphrey Bogart’s famous comment in Casablanca, ‘Of all the joints in the world, you chose to come here.’ But I’m delighted to have you all.” It was a subtle reference, largely lost on the crowd, to the lawyers’ probable chagrin at having to face the judge so soon after their dispiriting dispute with him over the Securities and Exchange Commission’s lawsuit against Bank of America. Rakoff then thanked Citi and the SEC for having answered questions he had put to them in writing days before and explained that he had a few more. At the top of the list: Could he consider the “public interest” in deciding whether to approve a settlement between the bank and the regulator?

Rakoff turned to Matthew Martens, the lawyer for the SEC. Martens, lean and clean-cut as a farm boy, rose from behind the long table facing the bench and offered a circuitous response. Rakoff cut him off. “You haven’t answered my question,” the judge growled softly, peering down at the lawyer through rimless glasses. Martens shot a glance at his notes, maybe a little nervous but poised. The thirty-eight-year-old attorney had been valedictorian of his law school class, clerked for US chief justice William Rehnquist, prosecuted scores of criminals for the Justice Department—and wrangled with more than his fair share of difficult judges.

Yet now, as chief litigation counsel for the SEC, Martens had the job of defending what to many others seemed indefensible—a suspiciously lenient settlement with Citigroup. What’s more, the notion that Rakoff could reject this kind of closed-door bargain as not serving the public interest seemed outlandish, a clear breach of legal precedent, and Martens hesitated to respond. No federal judge in memory had blocked an SEC settlement. “As I read the case law,” Martens began, “as I read the courts as saying—the Second Circuit, the Supreme Court, other circuits—as collectively saying . . .” He paused, wary of sounding evasive. “The appropriate standard for the court to apply is one of whether the settlement is fair, adequate, and reasonable.” The answer was oblique but its meaning clear: The public interest had little to do with it. All that mattered was what the courts had done in the past. And what the courts had almost always done was defer to the government and the banks.

Yet Rakoff pressed the point. “So if I were to find that [the settlement] still disserved the public interest . . . should I refuse” to approve it? “Your answer is no.” Correct, Martens responded. “It’s an interesting position,” Rakoff said, indicating his disappointment with a slightly theatrical sigh. “I’m supposed to exercise my power, but not my judgment.” The judge quickly shifted topics. “I’m not sure why this practice—admittedly a practice that has existed for many decades—of accepting a settlement in which the defendant neither admits nor denies liability makes any sense when we are talking about a public agency like the SEC.” Rakoff believed that approving the SEC’s settlement with Citigroup, a deal that provided the people with no insight into what had happened, would not only offend his instincts, it would make him, like so many judges before him, complicit in hiding the truth. He stared down at Martens. “Does not the SEC, of all agencies,” he asked with quiet and rising intensity, “have an interest in establishing what the truth is . . . what the facts are?”

Martens insisted that the public does know what the facts are.

“Why?” Rakoff shot back. “Because you say they are the facts, but the other side does not admit them?”

Martens pushed on. “Citi has agreed to pay a substantial sum of money in response to our allegations,” he said, “and they have not denied the allegations. We don’t believe in that instance that the public is left wondering what occurred in this case.”

“Let’s find out,” said Rakoff, turning to Brad Karp, Citigroup’s lawyer, who had been sitting quietly at the other end of the table from Martens. “Let me ask Mr. Karp. Do you admit the allegations?”

Karp rose, buttoned his suit jacket, and responded in a steady voice: “We do not admit the allegations, your honor.” He turned to sit, paused, and rose again. “But if it’s any consolation, we do not deny them.” The crowd burst into laughter, relishing the release. Even Rakoff cackled.

“I understand that,” the judge responded, his competitive instinct compelling him to try answering a good quip with a better one. “And I won’t get cute and ask you what percentage of Citigroup’s net worth is $95 million because I don’t have a microscope with me.”

The hearing continued for another ten minutes or so—Rakoff thrusting, Martens and Karp parrying. Eventually, the judge eased up: “I’m not going to rule today, I want to think about all this.” When it was over, he descended from the bench and exited through a side door, his three clerks and court deputy trailing. The crowd erupted in a frenetic buzz, speculating about what Rakoff would do. It was almost unthinkable that he might reject the settlement, although he had come close in the Bank of America case. They did not have to wait long.

Rakoff and his three clerks had barely entered the back stairwell when they started chattering about what had happened. “I guess they finally decided to send a hotshot lawyer,” the judge laughed, voicing his opinion that Martens had performed better than the SEC attorneys who had bumbled through the hearing on the Bank of America settlement.

Rakoff hadn’t made up his mind on what to do, but he was frustrated at Martens’s responses. “I was a little ticked,” he said later. “I did think he was equivocating.” Back in chambers, Rakoff discussed the hearing with Aaron Scherzer, one of his clerks, and as they talked, the SEC’s position that it was not his job to determine what was in the public interest—a bold thing to tell a federal judge—rankled. A softer approach, something like, You do have a role in determining the public interest, and here’s why the settlement qualifies, might have swayed him. He decided that he would reject the settlement, but this would be a collaborative effort, more so than in most cases. The judge would take the first whack at an opinion, as he typically did in the most important matters. His opinions often came back to his clerks typed but also annotated with scrawl so indecipherable that they had to call the judge’s deputy to interpret. Clerks would insert legal citations and sometimes an attempt at the kind of joke that often appeared in Rakoff ’s opinions. “Nice try, that’s a good one,” Rakoff would respond in the rewrite. “But here’s a better one.”

In the Citi case the process continued for weeks. On the Sunday before Thanksgiving the judge sent the penultimate draft to all three clerks, eager for their input on an opinion that he knew would draw intense public scrutiny and maybe an appeal. Early on the Monday after Thanksgiving, with a click on the “File” button of the court docket system, the final fifteen-page opinion flew into the ether and landed in the offices of the SEC and Karp’s law firm, Paul Weiss, with a thud.

“Finally, in any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth,” the judge wrote. “In much of the world, propaganda reigns, and truth is confined to secretive, fearful whispers. Even in our nation, apologists for suppressing or obscuring the truth may always be found. But the SEC, of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this court must not, in the name of deference or convenience, grant judicial enforcement to the agency’s contrivances.” Rakoff rejected the settlement and ordered the parties to trial.

Wall Street and its defenders were shocked. Citi itself offered only the sterile words of PR: “We respectfully disagree with the court’s ruling.” The rest of America—journalists, lawmakers, Midwestern wage-earners—delighted at the news that a powerful public figure, a dignified federal judge no less, had confronted the banks with deeds and not just words. “Judge Jed Rakoff is furious,” the New York Times declared in an editorial. “He should be. We all should be.” Senator Chuck Grassley, a conservative Republican, praised Rakoff for rejecting a “settle and slap-on-the wrist approach.”32 Rolling Stone called the judge a “legal hero for our time.” And hundreds of grateful Americans phoned and wrote to the judge’s chambers to express their joy and admiration. “Rakoff for president!” said a teacher from Minnesota. “Wisconsin loves you, judge!” a woman ex- claimed in a voicemail. A retiree from Florida even sent a box of chocolates, prompting a debate in chambers about the ethics of accepting gifts.

***

Tomorrow, I will introduce you to the third of the three judges I write about in my book.

The photo is faded now, its colors no longer vivid. The white line of a crease runs from its left edge toward its center, and a smudge, maybe from a thumbprint, clouds a corner above the crease. Faint, spidery scratches scatter about. It is a photo that has been handled often, looked at, smiled at, shared and loved and passed from friend to friend.

At its center, a blonde girl, maybe six years old, her hair pulled tightly back, her sleeveless T-shirt striped across with bright lines of color, leans toward the camera with mouth agape in a joyous shout. Behind her, his hands on his hips in a confident pose, stands a tall African American boy wearing a short-sleeved red plaid shirt and a grin so friendly you feel like saying hello. Beside and behind them and seated in front are twenty-two other boys and girls gathered in a haphazard mix of faces—white, white, Black, white, Black—all smiling, all delivering a holler as cheerful as the late-spring light.

It is a photo of Miss Thornton’s first-grade class at the Annie Ellis Elementary School on Grand Avenue in Yazoo City, Mississippi. It was taken near the end of the school year in 1971. There was a time when such a portrayal of school kids together in Mississippi would have been unthinkable, and in certain parts of the state it was unthinkable still. Yet moments of token desegregation aside, for essentially the first time in history, these children and others in thirty school districts across the state had attended a full year of racially integrated classes. They had attended because in 1969, in a case originally filed up Route 49E from Yazoo City in Holmes County, the US Supreme Court had ordered recalcitrant educators and complicit judges to stop procrastinating and comply with Brown v. Board of Education. Unlike those in DeKalb and Tunica and other Mississippi towns, these children went without controversy, without a mass exodus of white boys and girls to private schools created to skirt the demands of integration. And they are smiling. They are, after all, just six-year-olds, and you can easily believe that over the course of first grade they have not learned anything about prejudice. They have not learned anything but how to read and do a little math and engage in fun and childish things. They have not learned how to view each other with suspicion because of their race or their families’ status in town but merely how to play together. You can believe that is why, in the photo of their last day in first grade, they are smiling at the camera with unreserved glee.

For one child in particular, the Black child wearing a pressed white shirt directly to the right of the blonde girl in the striped T-shirt, the feeling of joy in those smiles mattered deeply. It stayed with him, shaped him, made him into a compassionate man who saw goodness and hope in a society and especially a state that had long inflicted brutal racism on its Black inhabitants. He would mention the photo often, to members of Congress, to prosecutors at the US Department of Justice, to acquaintances who were curious about what made him tick. That child was Carlton Reeves.

Reeves was born two states to the west, in Fort Hood, Texas, in 1964. He and his three older siblings soon moved with their father, First Sergeant Jesse W. Reeves, and mother, Wilhelmina Reeves, to Germany before settling four years later back in Yazoo City, his parents’ hometown. Yazoo sits on hills at the edge of the Mississippi Delta, about forty miles north of Jackson, the state capital, and forty-five miles east of the Mississippi River itself. The delta land that spreads to the horizon west is flat, its alluvial soil black and loamy, its swamps and small rivers and creeks remnants of a prior existence under the sea. In 1969 just over eleven thousand people, a little more than half of them Black, lived in Yazoo. The ones with jobs worked at the Mississippi Chemical Corporation or much smaller businesses like the lumberyard or tire store in town. Yet poverty persisted. Almost a quarter of Yazoo residents were on food stamps in 1970, and more than a third of families earned less than $3000 a year.

Growing up, Reeves might have had reason to be bitter; like most Black people in town, he was admonished to “know his place.” On his first day of school in the first grade, he walked from home along the loose gravel of Ninth Street before turning left and heading up Prentiss Avenue’s paved surface toward the Annie Ellis school. On his side of Prentiss, the west side, with bungalows like his family’s of wood boards and brick and cement-slab patios in small yards close together, lived the teachers and shopkeepers and families of the Black middle class. On the east side, not a stone’s toss away, were the notables of white society: the Barbours and the Stevenses and their homes of wraparound verandas and weighty columns and manicured lawns thick with shade. As Reeves grew, more Black families moved in, prompting the whites to move out until, eventually, even the east side was largely Black.

At school, the teachers and textbooks too often reminded him of where he stood. In fifth grade he went on a field trip with his fellow honor-roll students to Jackson, and standing in the rotunda of the state capitol was a statue of former governor and senator Theodore G. Bilbo, among the most infamous of the state’s infamous race-baiters. The bus driver, a father of a classmate and the guide on the children’s tour, hugged the statue and, according to Reeves, told the students: “Y’all should be very proud of this man, the greatest Mississippian ever.” In seventh grade, when Reeves reached out to a classmate offering him candy, his white teacher falsely accused Reeves of throwing some sort of obscene gesture with his hand and ordered him to the principal’s office. Ignoring Reeves’s protestations of innocence, the principal delivered twenty-five licks with a paddle to his backside. The memory of the injustice and humiliation can still bring Reeves to tears. In ninth grade, during a class on civics and Mississippi history, the teacher—the white football coach—said that slaves didn’t know how to handle freedom and were better off enslaved.

Outside of school, it was no easier. Best buddies like Henry Barbour—the nephew of future Mississippi governor Haley Barbour— often vanished into a white world that Reeves could only imagine. To see a movie on Saturday mornings at the Yazoo Theater, Reeves and his friends trudged up three flights of steps to the balcony for want of the extra fifty cents required to sit with the white boys and girls eating popcorn and holding hands in the padded seats downstairs. It was the theater owner’s way of separating the races despite the 1964 Civil Rights Act’s ban on segregation in public accommodations. In the summers Reeves played baseball in the all-Black Campanella League, which at first lacked the wherewithal to supply its players with uniforms. When the kids in the all-white Dixie Youth League and Babe Ruth League received new uniforms of lightweight cotton, though, their old ones of hot and itchy wool were handed down to the players in the Campanella League, along with whatever used bats and balls could be spared. After the public pool was forced to admit Black swimmers, the town filled it and replaced it with a tennis court.

Reeves cringed at how his parents were sometimes treated. In 1972, when he was about eight, his sister came home close to tears and told him that she had just been at the grocery store with her parents. The white manager had insulted their mother with a racial slur, and his father had yelled at the man, prompting a call to the police. A year later, when her now-seven children were old enough to mind themselves or each other, Reeves’s mother took a job as a house- keeper washing sheets and towels at the Yazoo Motel. She was paid a dollar an hour. Reeves’s father was home periodically but more often away, continuing the army tours in places like Pennsylvania and Georgia that eventually provided an excuse for him to be gone for good.

Yet Reeves was far from bitter about all this, no doubt because it was just the world as he knew it but also because of who he was. At the Annie Ellis school he would join the “A section.” It consisted almost entirely of white students, and they would in later years learn algebra and biology rather than the general science and shop that students in the bottom, almost entirely Black, section C would be taught. “The way you knew if you were in the smart class,” Reeves recalled, “was when you looked around and you were the only black person in there.” He would thrive in the public schools not just because of his smarts but also because of an ebullience that made people smile. They called Reeves—still call him—Baba (pronounced “Bay-bay”), his eldest brother’s name for him as an infant.

Reeves would grow close to many of his classmates, white and Black. In high school they would elect him president of his junior-year class and by secret ballot MVP of the tennis team even though he was far from the best player. And though many had come or gone over the past twelve years, they would largely retain the joy in each other’s company that they had displayed in that photo back on the last day of first grade. It meant a lot to Reeves that their high school graduation song was Stevie Wonder and Paul McCartney’s “Ebony and Ivory.”

Reeves had a strong sense of optimism, in part by nature but also as the result of a precocious appreciation for the law and what it had done and could do for people who looked like him. That appreciation first came in a childish way, while he was watching an episode of the sitcom Sanford and Son, and its star, the Black comedian and actor Redd Foxx, got sued by his wife for divorce. It seemed to Reeves that a lawyer’s job must be to help people in tough situations. During the US Senate’s Watergate hearings, in 1973, when Reeves was just nine years old, he devoured the unfolding drama of testimony and examinations and startling revelations about a corrupt White House. In spare moments he would attend trials at the Yazoo County Courthouse, enthralled to see what lawyers did. His first chance to watch the wheels of justice turn up close came one summer when, as a favor for a friend on vacation, he cleaned the office of Judge William Barbour downtown in Yazoo City. It had a copying machine, and having never seen such a contraption, Reeves clicked the “on” button and flinched in near panic as it hummed and whirred. He didn’t know how to stop it, so he pushed the emergency shut-off button, cutting all power, and felt compelled to confess to the judge that he believed he had broken the machine.

With interest in the law came a fascination with politics. Reeves would watch the presidential nominating conventions deep into the night over several days. His mother would make sure that he and his siblings understood the power of the vote, and come every election day, she would take them to watch her cast her ballot. They would return home and listen on the local radio station for the results. Throughout his childhood, for most of the 1970s, those electoral results were inevitably disappointing. The contests were often close, but Black candidates for mayor or the board of aldermen or county supervisors lost time and again until, in 1979, Wardell Leach won his race for supervisor. Reeves was ecstatic. In 1982 politics and law met for Reeves in a federal courtroom, where Judge Barbour denied a Black mayoral candidate’s challenge to his latest election loss. The defeat stung, but what mattered most for Reeves was that the candidate could go into court and try to ensure that the election had been fair and the system had worked.

That same year, Reeves started college at Jackson State University, a historically Black institution of close to ten thousand students and the scene of a deadly police shooting of fourteen students in 1970. Future students like Reeves “relived that shooting a lot in their minds,” said Patricia Bennett, who taught Reeves at the university and recently stepped down as dean of the Mississippi College of the Law, “and it became part of their stories.” For better or worse, the deadly shooting also put the school on the nation’s map as a locus of Black resistance to racism. Reeves might have gone to almost any college in the country and, given his preference to stay in Mississippi, certainly the University of Mississippi—Ole Miss—but he refused. One reason, he said, was “simply because I knew that these white kids in my [high school] class loved Ole Miss so much. If they loved it that much, I didn’t want it.” But he also saw in Jackson State an opportunity to gain “an understanding of who I am.” He continued: “You learn so much more about yourself because you see your own people.”

While at Jackson State, Reeves took a series of American history courses, many with teacher Dennis Mitchell, who became his favorite, a thoughtful scholar of Mississippi’s past and its writers and artists. From Mitchell, Reeves learned that a certain group of people— individuals who worked mostly out of the public eye and, aside from an occasional encounter with Judge Barbour, had never much drawn Reeves’s attention—had played an enormously consequential role in his life. Those people were federal judges, and Reeves learned that over the past thirty years they had withstood sometimes violent resistance to breathe life into his rights and into the rights of every American. He came to learn that, in his eyes, “judges are heroes.”

It would be a mistake because, still, judges can stand against abuses like last weekend’s attempt to deport children in the dead of night to Guatemala. More broadly, it would be a mistake because courts at their best can act as a kind of whistleblower in our democracy, sending an early signal that a serious problem needs repair. They can also bring us together with persuasive rulings that broaden support for shifts in what society views as good or appropriate or desirable. They can offer a direct and effective way for us to voice our concerns and have them addressed. And the courts are one of the few places where facts – tested, proven facts – can emerge to shed light on disasters so that lawmakers can sensibly gauge what happened and enact reforms.

Yet as I argue in my book, over the past six decades federal courts and, even more important, people’s access to them have been constrained or blocked – by Congress, by the Executive, and especially by the Supreme Court itself – to the point where they can no longer do what we count on them to do.

In too many cases, they cannot make police officers or other officials pay for the abuse that they inflict on their victims. And it’s not just police. A virtually impenetrable legal shield has protected the likes of prosecutors and judges from answering for even the most horrific misconduct. Courts cannot allow employees harassed or worse at work to reveal in public their bosses’ misconduct. Judges cannot force banks to come clean about frauds that force the economy to its knees. And in case after case, criminals cannot get just sentences, immigrants fair hearings, or Americans generally the day in court that they once imagined was their right.

So how did it happen? The current effort to kick shut the courthouse doors started about seventy years ago, initially fueled by racism. In 1956, a group of Southern senators aghast at what Brown v. Board of Education – the Supreme Court case that ruled racially segregated schools unconstitutional – would do to their home states’ way of life issued the Southern Manifesto, a declaration of war on the federal courts. In the following decades, the effort gained momentum from a politics of retribution, errant attempts at reform, and a fear that courts fully capable of delivering justice would be too costly and slow. Today, the federal bench is full of men and women inclined to view their role narrowly, to duck cases and defer to state lawmakers and governors and let pass rather than scrutinize and perhaps challenge the toughest issues of our day.

It is not the first time that the federal courts have suffered diminished stature. They have periodically risen and fallen in the eyes of Americans – liberals and conservatives and libertarians, Democrats and Republicans and Progressives – throughout our nation’s history. They and especially the Supreme Court have been on the side of some of the most regressive forces in society. But just as often they have given Americans hope and relief on everything from racial equality to economic progress to criminal justice

This history has long provoked intense debate among politicians and scholars and judges themselves over how powerful and accessible to the public the courts should be. In recent years, though, it seems a swath of America has about given up on the federal courts. On the right, the work of making it harder for people to seek redress and vindicate their rights still thrives, and to the extent conservative judges and justices are considered activist, it is a starkly negative activism, an effort to get the federal courts out of the business of, say, upholding erstwhile principles like the right to abortion or the notion that all Americans – even presidents – are not above the law. On the left, the talk is of imposing term limits on judges and justices and limiting their ability to hear certain types of cases and relying instead on elected officials to make law and interpret the Constitution.

The best argument for why we should not give up on the courts is revealed in the stories of the three remarkable judges I portray in my book. They are of different races and genders, from different backgrounds and parts of the country, and with different views of their roles on the bench, and they have strengthened our democracy in a host of extraordinary ways. One judge is Carlton Reeves, a Black man born in Mississippi during the height of the 1960s struggles over civil rights, who in first grade attended the state’s first desegregated school class and grew up to be a judge of extraordinary compassion, courage, and eloquence on the U.S. district court in Jackson, Mississippi Another is Jed Rakoff, a white, well-educated child of a prosperous Philadelphia suburb, who after nearly three decades as a U.S. district court judge in New York routinely challenges power and legal precedent as one of the nation’s leading advocates for judicial independence. The third is Martha Vazquez, a Mexican American and daughter of an undocumented immigrant, who grew up in a scruffy neighborhood of 1960s Southern California working alongside her parents in the gardens of the well-to-do and became a U.S. district court judge in Santa Fe, New Mexico.

Each of these judges came of age as people’s access to the courts and the power of judges were declining, and each was personally and profoundly affected by the experience. What’s more, on the bench, each has resisted growing and harmful constraints on a judge’s power to discover the truth and right wrongs – Rakoff by confronting those constraints directly through the force of logic, Vazquez by digging deep into the lives of the people who come before her, Reeves by making his case to the ultimate authority – the people. Their diversity demonstrates both the breadth of the opposition to limiting court access and power and the range of people who practice audacious and consequence-focused judging. Their story is very much the story of a compelling resistance to a war on the courts – a resistance more necessary now than ever.

Tomorrow, I will introduce you to the first of these judges.

Or Adrian Martinez, also a citizen, watching agents of Immigration and Customs Enforcement arrest an elderly janitor at a California Walmart – a “hard worker,” Martinez cries out – when they turn on him, grab him by the throat, and shove him backwards into a pickup truck.

Or any of hundreds of other people – here legally, gainfully employed, going about their business – shoved and pummeled and handcuffed and held for days by immigration agents but ultimately released because, let’s face it, they have not done wrong. Yet as badly as they may have been treated, one thing is possibly worse – they can do almost nothing about it.

Thank you, U.S. Supreme Court.

It wasn’t always this way. In 1971, when the court still had a healthy respect for civil rights, it ruled in a case called Bivens v. Six Unknown Federal Narcotics Agents that people could file suit for money damages against a federal official who had violated their constitutional rights – seizing and searching them without probable cause, for example. But in 1983, the justices began chipping away.

First, they barred suits seeking compensation if there was an alternative, like a remedy under civil service rules or a statute, even if that remedy offered scant relief. Then, they blocked suits arising from military service or incarceration in a private prison operating under government contract. In 2007, fearing a “flood of litigation,” the justices prevented a rancher from suing federal officials who for seven years tried to intimidate him into selling his land. Finally, in 2010, they said people couldn’t sue public officials Congress had decided were immune. In other words, the justices surrendered to Congress their authority, their obligation, to enforce the Constitution and grant people relief when their constitutional rights are violated.

As I said, this leaves the likes of Andrea Valez and Adrian Martinez with almost nothing. There is still something called the Federal Tort Claims Act, which allows people to sue the federal government for its employees’ wrongdoing – though not the employees themselves – in limited circumstances. In fact, the Institute for Justice, a libertarian law firm in Washington, D.C., recently filed claims under the act against ICE and other agencies on behalf of George Retes, a U.S. Citizen and Iraq War veteran wrongly seized in a melee at an immigration checkpoint on his way to work.

The institute has its work cut out for it. Retes can’t actually sue unless the agencies deny his claims, and even if he gets into court, he has no right to a jury trial or damages designed to punish the government. The tort claims act also has broad exceptions, and even if Retes ultimately wins, none of the agents who abused him with pepper spray and knees to his neck and back and detained him for days on end can be liable, so deterrence is effectively zilch.

Sparing law enforcement officers, state and federal, from compensating targets of their thuggery and horrific transgressions has become time-honored policy in America. In 1967, the Supreme Court granted cops “qualified immunity” – a concept that blocks lawsuits if the officers acted in good faith because, as Chief Justice Earl Warren wrote at the time, “A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” Nice theory, but it has developed over the decades into an almost impregnable barrier for victims seeking redress.

Cops can still go to prison, as the prosecution of George Floyd’s murderers in Minnesota showed us, and the uproar over that and other killings of Black people by police made legal reform seem imminent. The Ending Qualified Immunity Act was introduced in Congress in 2021, and a few states like New Mexico and cities like New York eliminated qualified immunity as a defense in some cases. Yet demands for law and order following a crime spike during the Covid pandemic put broad reform out of reach, and the appalling videos of beatings and shootings that once made change so urgent went largely for naught.

Now there are new videos, scenes of masked men surrounding a frightened Tufts student before leading her away in handcuffs, of unidentified black-clad agents hurling a food-delivery driver to the ground in Washington, D.C., of…it seems superfluous to go on. The swaggering terror that the Trump administration inflicts on immigrants every day feels deeply creepy in a way that abuses of the George Floyd era did not. Because unlike then, there is little uproar to speak of now. Legal reform does not seem imminent. The new videos do not make change urgent because too many people like what they see – just read the comments on X or YouTube.

Democrats and other opponents of the administration know this, of course, and the danger lies in the lessons they take from it. Someday they will again lead the government, and though Trump will be gone, the memory of how he expanded and wielded his power with impunity will not. They will want that power, too, though in service of whatever their own ends may be. A Democratic president may not call in the army to seize legal immigrants or let ICE roam the streets of DC. But he or she might take comfort in knowing that, say, siccing overzealous FBI agents on right-wing troublemakers can prompt applause rather than legal reprisal.

The Constitution protects the right and the left, and it is up to the courts to ensure that victims have remedies against the people who violate their rights. That means restoring the promise of the 1971 Bivens decision, eliminating the judge-made rule of qualified immunity – and, maybe as a result, giving pause to ICE agents eager to rough up the likes of Andrea Valez and Adrian Martinez.

Let’s call that person the Chief Justice of the United States.

John Roberts has failed miserably at this part of his job. And it is part of his job: The Supreme Court’s Code of Ethics, issued in the aftermath of justices Alito’s and Thomas’ travel-and-gifts sprees, urges the chief justice to “contribute to the public’s understanding of the law” through speaking and writing. Yet other than decry threats of violence and impeachment motions against judges the president does not like, Roberts has said little in the face of corrosive fantasies about courts and lawyers and the law itself.

Consider the misconduct complaint against James Boasberg. He’s the U.S. district court judge who ordered the Trump administration in March to stop flying immigrants illegally to an El Salvador gulag. After the administration defied his order, Boasberg found probable cause for holding government lawyers in criminal contempt.

Even before he issued the order, though, the judge apparently met privately with Chief Justice Roberts and several lower-court judges and, in his capacity as the chief judge of the district court in Washington, D.C, passed along to Roberts his colleagues’ concerns about whether the administration would flout their orders and prompt a constitutional crisis. The concerns were obviously justified, but last week, Attorney General Pam Bondi filed the misconduct complaint, claiming Boasberg had “undermined the integrity of the judiciary” by “making improper public comments about President Trump and his Administration.”

Assuming reports of the meeting are accurate – and we can’t be sure because they are based on a memo leaked to right-wing publication The Federalist – nothing Boasberg did or said comes close to misconduct, for all the reasons others have richly detailed. Conspicuously not among those others is the person best qualified to shed light on what happened, the guy Boasberg was speaking with in the private meeting, Chief Justice John Roberts.

Roberts would surely avoid getting into specifics, but he could say something like, as head of the judiciary I rely on judges to tell me what’s going on in the courts and urge them to keep me informed to so I can deal with any problems. That’s it. Instead, we get silence from him and a rant dressed as an ethics complaint from an attorney general bent on eroding trust in the courts and portraying the president as some sort of victim.

Take another example, this one involving a man at the heart of the controversy over the administration’s defiance of the courts. He’s Emil Bove, Trump’s former defense lawyer who as a Justice Department official suggested to subordinates that they say “fuck you” to the courts, according to a whistleblower’s well supported claims. The Senate rewarded bon-mots Bove with a seat on the federal appeals court in Philadelphia after Judiciary Committee Chairman Chuck Grassley said of the whistleblower’s information, “even if you accept most of the claims as true, there’s no scandal.”

Surely Roberts disagrees. He needs to say so. Pointedly. Again, he would never comment on the specifics, but it’s plenty clear that at least some DOJ lawyers have in practice been following Bove’s suggestion, and though the chief justice warned in his year-end report about “elected officials” disregarding court orders, a lot has changed since. Ignoring the courts now seems official DOJ policy.

Finally comes the startling failure of Roberts and his colleagues to explain their own rulings on the most consequential issues of the moment. The Supreme Court has blocked, suspended, squelched, and otherwise thwarted lower-court decisions against the president’s executive orders on everything from abolishing birthright citizenship to defunding scientific research – without really telling us why.

Most of these cases have come on the so-called emergency docket, a process that allows the administration and others to seek speedy relief from the court without the legal briefs, oral arguments, and careful consideration typically afforded cases. The process serves a purpose: Sometimes emergency action is necessary to avoid a serious injustice. But preventing, say, Trump from firing members of the Consumer Product Safety Commission or Elon Musk from messing with Social Security data? These are not injustices, let alone serious ones. The justices could easily let the lower-court decisions stand while taking the time to gather their thoughts and express them in a well-reasoned opinion.

But no. We get brief – often unsigned and less than a page – orders allowing the president to bull through precedent and reason while the court leaves any explanation or legal analysis for another day.

Roberts is often described as an institutionalist, someone who cares deeply about the court he leads and its reputation over time. Too often, though, he seems like the guy who said in his 2005 confirmation hearing that his job was to call balls and strikes. This moment, and the frightening challenge of this president, require more. They require a chief justice who can ensure that the legal system and the courts’ role within in it are properly understood. That’s a big part of John Roberts’ job. We are still waiting for him to do it.