Current Challenges Facing the Judiciary

Ten years ago, Duke Law School began publishing Judicature. Among the articles published in that first Duke edition was a lecture titled “Grand Challenges, Grand Ideas,” by David F. Levi, then-dean of Duke Law School. He highlighted five key issues of keen concern to the judiciary: access to justice; justice at a reasonable cost; an independent, transparent judiciary; criminal justice reform; and maintaining a sense of purpose.

To celebrate Judicature’s first “decade at Duke,” Levi — now dean emeritus of Duke Law School, director emeritus of Duke’s Bolch Judicial Institute (which has housed Judicature since 2018), and president of the American Law Institute — revisits the theme to examine challenges facing the judiciary today. Through two conversations held in Washington, D.C., in May 2025 — one with scholars and one with judges — Levi explores the particular challenge of maintaining an independent, transparent judiciary in the face of an extraordinary expansion of executive power.

Levi first spoke with Bob Bauer, a professor of practice at New York University School of Law who served as White House counsel from 2009 to 2011, and Jack Goldsmith, the Learned Hand Professor of Law at Harvard Law School who served as assistant attorney general in the Office of Legal Counsel from 2003 to 2004. Together, Bauer and Goldsmith co-authored the book After Trump: Reconstructing the Presidency (Lawfare Press: 2020).

Directly following that discussion, the focus turned to the experiences of judges themselves. Lee Rosenthal, U.S. district judge for the Southern District of Texas, and Diane Wood, retired chief judge of the U.S. Court of Appeals for the Seventh Circuit, director of the American Law Institute, and senior lecturer at the University of Chicago Law School, joined Levi to share their insights.

Their conversations, edited for clarity and length, follow.

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Bauer and Goldsmith: Academic and Political Perspectives

LEVI: I just came from a meeting of the American Law Institute, where a judge told me, “I read Judicature cover to cover, and it is absolutely the best thing written for judges.” It was totally unplanned and makes a good segue.

Bob and Jack are just amazing and they’ve been doing so much together. One is a “D,” one an “R” — but I don’t think that’s probably your most distinguishing feature. Nonetheless, when we have the two of you together, we think we have balance and the truth. How did you find one another?

BAUER: I knew who Jack Goldsmith was, of course, though I’d never met him. I  was the White House counsel and involved in a controversial decision on a War Powers Resolution issue in 2011. Press reports on a division within the administration on this particular issue attracted a significant amount of critical scholarly commentary — including from one Jack Goldsmith, who memorably wrote a blog posting for Lawfare. It said “Bob Bauer may be a very smart person,” —

GOLDSMITH: I said you were “a very fine lawyer.”

BAUER: “ — but I can’t credit his role in this because he doesn’t know anything about national security law.” First of all, there was some truth to that, so I didn’t take too much offense. And when we wrote our book After Trump in 2020, I insisted on including that anecdote because it’s the background to our working relationship and friendship.

GOLDSMITH: Bob worked in the White House, I worked in the Justice Department, and we had different perspectives on lawyering for the president, which led Bob to write an article on the topic to which I responded. We kept talking and were going to write about the White House counsel’s office but then decided to write a book about reforms to the presidency.

LEVI: Strangely, you called it After Trump. What did you have in mind?

GOLDSMITH: I’m pretty sure the introduction said, “after Trump, when it comes, which may be in 2021, but may be later.”

LEVI: Because this is a celebration of Judicature, we’re going to keep our focus on the courts. Jack, how would you describe the Trump administration’s posture toward the courts since January 2025?

GOLDSMITH: I want to separate out the posture toward the lower federal courts and then the posture toward the Supreme Court. Generalizing a great deal, I would say that the posture toward the lower federal courts is one of systemic and purposeful disrespect — putting it mildly. Government lawyers have shown up unprepared for argument and are being extremely disrespectful toward judges. It’s okay for an administration to criticize judges, in my opinion, but the administration’s criticisms have bordered on threats. There’s also been game playing about complying with judicial orders. There’s arguably been noncompliance with some judicial orders.

It’s been somewhat different at the Supreme Court. The solicitor general’s office, which represents the government before the Supreme Court, has been forward-leaning but still respectful in making clear that the government will comply with the Court’s orders. Recently, the solicitor general felt the need to put in his brief — and to say five times before the Court — “Yes, we’ll comply with your precedents.” It’s really a remarkable commentary that the SG anticipated and went on at length at that question.

BAUER: I agree with Jack about the general approach and tone of disrespect. I would only add that it’s mystifying to me how the administration’s lawyers think such behavior helps achieve their aims over the long run. It seems to me that this conduct is eroding credibility in a way that will come back to haunt them.

GOLDSMITH: I agree, but I don’t think the main strategy is to win in court. The administration is interested in having a public fight with courts. It’s very clear that it could have had greater success with a different strategy, but they just have not prioritized winning. And it’s not because there are bad lawyers in the Justice Department, it’s because winning cases is not necessarily the White House’s preferred strategy.

BAUER: That may well be true. And I don’t know whether there’s a division in the White House, with some wanting to take a practical approach, a “let’s win” approach, and others engaging in performative law that appeals to the base and aims to show how the system is operating against Donald Trump and everything he stands for. I could be wrong about this — I’m the more optimistic one of the two of us — but I think that this is going to play out poorly over the long run, and that it will fail both in the achievement of their goals and reach its limits as politics.

LEVI: Having been a judge myself, I know that judges rely heavily on the credibility and good faith of the Department of Justice (DOJ). I gather from what you’re saying these are eroding.

GOLDSMITH: This has been apparent in the judicial hearings and some of the rulings in the lower courts — but most extraordinarily at the Supreme Court. The order the Court issued enjoining the use of the Alien Enemies Act to deport two persons and a putative class was premised on the Court’s concerns about the government’s machinations trying to avoid judicial review. The opinion was dripping with a lack of trust in the Justice Department, and that is definitely going to hurt the DOJ at the Supreme Court. There’s no doubt about that. It has already.

LEVI: Other administrations have gone toe to toe with the courts. What’s different now?

GOLDSMITH: An important academic study by Nick Parrillo in the Yale Law Journal said that, in the last 20 years or so, the federal government was held in contempt approximately once a week by lower federal courts. It makes clear that, at the agency level down in the weeds of adjudication, there’s lots of sometimes aggressive back and forth between the government and judges about the meaning of an order and about whether it’s being implemented. So if you took away all the rhetoric and just looked at the practice, it’s not unprecedented.

I would say, though, that in no period of American history has an administration so overtly and aggressively threatened the federal courts — including with noncompliance. There was the implicit standoff between John Marshall and Thomas Jefferson in the early 1800s, but that was not between Jefferson and Marshall overtly. Congress did a lot of threatening of the courts during the Reconstruction period, we know about the court-packing plan with FDR, and we know about the “Impeach Warren” movement. But in terms of the persistent verbal threats, threats of noncompliance, and disrespect, I’ve never seen anything like this.

BAUER: The question is, where does all this go? There is evidence in polling data — and there’s no question that Trump is sensitive to polling data — that there remains a profound resistance in the body politic to the idea that the government gets to disregard court orders. And I think the administration knows that.

Now what does that mean? It could go a number of ways. They could decide to engage in what somebody’s referred to as legalistic noncompliance, pretending to be compliant when they’re not. And we’ve seen some of that already. Or they could do what Stephen Miller recently did, which is to claim victory in a case they actually lost. But I think there’s a limit to what will be accepted by Congress going forward and even among some of the most loyal troops, because they’re sensitive to the same public opinion.

LEVI: Jack, you wrote an op-ed in The New York Times [May 5, 2025], contending that the aggressive expansion of presidential power by President Trump and his predecessors has damaged the Supreme Court. Can you explain?

GOLDSMITH: Sure. Depending on how far you go back, arguably beginning with President Obama — arguably before that — we’ve seen presidents issuing an increasing number of legally aggressive claims of authority on the basis of executive orders or executive memoranda and the like. And the Supreme Court has had to deal with a lot more of the highly politicized issues these raise than usual. Right and wrong in such cases get confused with “did our side win or lose?” So the Court has been drawn into controversial separation-of-powers issues in which, I think, it hasn’t always judged wisely. Basically, the collapse of Congress has meant that law gets made in this country as a dialogue between the executive branch and the Supreme Court. This has been described, starting in the Obama era, as “legislation by litigation.” And that raises the political stakes for Supreme Court decision-making.

LEVI: Bob, you were White House Counsel in the Obama administration and the use of executive orders was somewhat prominent during that time. How would you say this expansion of presidential power, if you think it is an expansion, differs from what we saw during the Biden or Obama presidencies?

BAUER: I think it’s different in some pretty radical ways. First of all, it isn’t clear who’s in charge and whether, for example, the Office of Legal Counsel still has any role in reviewing executive orders. The range of issues that Trump acts upon by presidential memorandum or executive order is quite extraordinary. It goes beyond anything that would have been considered in the administration in which I served. The language often appears to have been dictated directly out of the Oval Office and without review or revision by lawyers. Jack has made the point that some of the executive orders look like they were written for Truth Social.

I am not suggesting that the lawyering in every Democratic administration was pristine, but this is really different.

LEVI: Many members of the public, of Congress, and of the administration view judges as politicians in robes. What can we do about that?

BAUER: One thing that I think is critically important — and there have been problems on both sides of the aisle — is that political leadership must exhibit some restraint in attacks on the Court. I understand there are legitimate questions that could be raised, like Justice Thomas’s relationship with Harlan Crowe or Mrs. Alito’s decision to fly certain flags outside of her house. But there are ways to have those conversations that don’t demolish or erode respect in the courts. I don’t want to engage in moral equivalency here because I think the extremes are pretty clearly on one side right now rather than on the other. But I do think political leadership generally has to recognize the costs of this kind of rhetoric, because it’s what the public absorbs in assessing the respect that they should have for the institution.

GOLDSMITH: They should consider the cost, but they’re thinking about the benefits — and this went on for a decade before Trump. In my judgment, as the Supreme Court got more conservative, there was a concerted political effort to delegitimatize it. There were all sorts of proposals to change the Court’s composition and jurisdiction. None ever made it very far, but this was all part of a concerted plan by one side.

Now we have the same thing times a thousand because the Trump administration sees value in doing this. So in some sense courts are political punching bags, and it’s not like they can fight back, other than the chief justice occasionally saying something that falls on deaf ears. Frankly, when courts have so much power, they’re going to be political footballs. I don’t think there’s anything they can do about it.

BAUER: To be fair, the Supreme Court has brought some of this trouble on itself. It did not respond well to these ethics controversies, and there’s been a sort of arrogance in its “don’t get into our business” responses, which I think did not serve it well. Now, having said that, unlike others, I think that the Court’s adoption of the code of conduct was a step in the right direction. They needed to do that. So that was good, but they have played some part in this erosion of respect for the judiciary.

LEVI: Here’s a two-part question to finish up: If you each had to name two areas that concern you the most about presidential authority, what would those be? And what should we really get control of if we’re going to rein in the presidency?

BAUER: As they say in Congress, what I’m about to say is subject to revision. A few things that come to mind immediately are the need for Congress to step in on a bipartisan basis to settle some of the questions about presidents conducting business affairs in the White House and profiting from the conduct of public affairs — whether for their benefit or their family’s. The openness with which this is taking place is really extraordinary. I don’t know any precedent for it. There are reforms that could help significantly, and we wrote about some of them in our book.

On the second point — and I’m just plucking it out of a whole range of questions about presidential authority — Jack and I have written about the virtually unfettered control that presidents exercise, without any obvious limitations, over the use of nuclear weapons.

GOLDSMITH: What’s most worrisome to me in terms of what’s going on in the executive branch is the utter elimination of internal legal constraints. It’s hard to exaggerate how many laws govern executive branch action and how seriously those laws have been taken by every administration in our country’s history — including Trump 1.0. But now the Trump 2.0 administration has eliminated any legal checks on the presidency. That seems like an exaggeration, but it’s absolutely true. They’ve done it systematically and fairly successfully. In every other administration, the main check on the executive branch came from within
the executive branch — long before you got to the courts. I can’t emphasize
that enough.

The weaponization of government power against law firms, universities, and individuals is the other thing that concerns me. Bob mentioned a few of the reforms from our book, which were premised on the actions of Trump 1.0, and it had about 50 reform proposals. And the amazing thing is how many issues have come up in Trump 2.0 that we didn’t even think about. By the end of this administration, I think we’ll be in an even worse position than we are now.

And I really believe they’ll need to consider constitutional amendments to Article II, because the raw power of the executive displayed in the next three and a half years is going to make that necessary. One thing that is going to be abused extraordinarily is the pardon power, which, if unleashed, can swallow the Constitution. I really mean that, because the president can justify any action, make legal accountability go away, and can garner favors with no limit. So reform Article II, beginning with the pardon power is the easiest thing to do. Then it gets harder from there. How’s that for pessimism?

LEVI: It’s pretty good. Bob, you said maybe you were the more cheerful of the two —

BAUER: That’s a low bar.

LEVI: So what gives you hope?

BAUER: I think we’re going through extraordinary stresses that are complex both in origin and in how they’ve evolved over time. This has led to people thinking we’re going to slide into authoritarianism, but I think this slights the resilience of the democratic impulse in American political culture. There’s a point beyond which this can’t be pushed, I think, so I’m optimistic about that. I don’t take an apocalyptic view that at the end of all of this is the collapse of the American Republic and the loss of all democratic values. But I think we’re in for a very rough ride.

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Rosenthal and Wood: The Judges’ View

LEVI: We’ve just heard that this is a stressful time for the judicial branch. How are the courts doing?

ROSENTHAL: I like “punching bag” as a place to start. But, by and large, I am enormously proud of how our district judges are responding to stressful and quick-moving challenges — especially when the information the judges are receiving is apparently incomplete or subject to question. I’m impressed by people like Judge [James] Boasberg — [chief judge of the U.S. District Court for the District of Columbia] — who presses the lawyers who appear before him, doesn’t get mad at them, but makes it clear that he is insisting on getting this information.

When you get dramatic episodes of planes flying just as courts order them not to — and not turning around — that puts the courts in an almost impossible position. But recognizing that this is unprecedented and incredibly difficult for district courts, which rarely are in these positions, they are doing really well. You can look at my two colleagues in the Southern District of Texas — one a Trump appointee, who ruled that the president could not use his war authority to remove Venezuelans on a flimsy theory that they might belong to some gang without any notice or opportunity for a hearing. Since then the number of such opinions has grown, affirming the ability of district judges to move quickly, decisively, and clearly when they view obvious instances of violations of our constitutional norms. Having said that, there have been a few exceptions.

To people looking at what’s going on, I’m not sure how much of the district judges’ competence and fortitude they see, which is troubling. But I do believe that the district judges will continue to do their jobs — and remember, they’re doing these difficult and sensitive cases on top of all their other cases. I’m enormously proud.

We have been buoyed about the fact that the American Bar Association and other institutions have given us both praise and support. That helps tremendously when you’re a one-judge court in a pretty conservative part of the country and worried about being out of step. So for those of you in a position to offer that kind of support, bring it on. We will really need it.

LEVI: Diane, you probably used to give “State of the Circuit” speeches. What would that speech look like today?

WOOD: I agree that district judges have risen to the occasion as well as they could — and that the crude and disagreeable language from people in high places is not shaking their resolve. Some judges are facing personal threats, but they are still going to work every day and they’re doing their job.

On the other hand, this is a very difficult atmosphere, because the government, whether as plaintiff or defendant, is pushing the envelope hard on legal doctrines. This is new territory for the courts, and they’re trying to apply well-established doctrines that may not serve effectively.

I’m talking about something as fundamental as whether somebody has a right to bring a lawsuit — where the judge in an ordinary case might just go through the usual analysis of what it takes to have standing to sue. You have to have an injury in fact, caused by the event that the suit is about, and one that needs redress by a judicial decision. Anybody can recite that, but what about these new, edgy cases, when you are wondering: Is there a private, individual right to enforce this? Is this something that only the Justice Department can do? Is this something that we are able to do anything about? If we were to issue an order, would that just be writing on a piece of paper? In other words, I’m thinking of the redressability part of standing. I think judges are worrying about that a lot more.

They’re also worrying about statutes that have never previously received this much attention, such as the International Economic Emergency Powers Act. When the executive announces an emergency, the courts’ first instinct is going to be, wait a minute, we’re the judicial branch of the government. We’re not Congress; we’re not the executive. And so we owe tremendous deference to the executive’s decision to describe something as an emergency. Then you look at the facts and ask, “Is it actually an emergency today?” Are so many people crossing the border that “emergency” is an apt word? And people with common sense are likely to say, “No, it isn’t.” But what power do the courts have in that situation?

The president’s reasoning for imposing these yo-yoing tariffs is also supposedly based on an emergency. So courts aren’t sure what they have the power to do, and they are proceeding cautiously so as not to get beyond what is understood as their role — even as they feel that the present situation is not what these laws were made for. So they’re having to be creative in trying to figure out how existing laws made for other times fit the present situation.

LEVI: You both made passing reference to threats against judges — Judge [Paul] Grimm and the Bolch Institute have been leaders in responding to this. Judges — and their family members — are indeed being threatened. What is happening? How do judges see this? Is it having an effect?

ROSENTHAL: I see it in a couple of ways. It’s important to remember that the Supreme Court recently heard arguments on universal injunctions and on birthright citizenship. These are critical questions to which the answers are far from clear. So we’re operating when the level of uncertainty is powerful, and it feels like a call on all our abilities to do what Diane aptly described as being both clear and careful. And when you add the pressure put on judges to be careful, thoughtful, and effective in the face of potential imminent harm, that can be enormously difficult.

How does the threat play into all this? It really doesn’t, because you need to do your work. You have the great benefit of sitting in a courthouse with lots of marshals who are ready to appear whenever you need them.

Now, when you leave your courthouse and enter the rest of the world, you’re just a person. I have talked to judges who say, “Yes, I’m nervous. Yes, I’ve done a few things like alter the paths that I take to drive home. But I haven’t changed the way I do
my work.”

There are judges who have received pizzas they didn’t order that are marked with the name and face of the murdered son of one of our district court colleagues. That’s cruel, but it hasn’t worked. I think it will continue to be a waste of pizza.

WOOD: I agree that the violence that has happened over the years has not stopped federal judges from doing everything that they’re supposed to do. In 2005, one of my colleagues in Chicago went home to discover her mother and husband murdered on the floor of her home, and she’s still sitting as a senior judge today. She went right back to work, although a marshal lived with her for more than a year because of the seriousness of the threats made against her. And make no mistake, these were threats related to rulings she had made in cases, not for any other reasons.

It is something that you think about. I moved to a new house at one point, and the marshals insisted on a security system, which I consider a giant pain in the neck, but I understand the need. The marshals will tell you that they can keep you safe at the courthouse, because as Lee says, there are many ways of doing that. And you’re probably fine if you’re out shopping or playing at a park with your granddaughter. But it is impossible, with the internet the way it is, to conceal where you live.

Lots of states have passed statutes that allow judges to try to scrub the internet of their personally identifying information. I’m a great skeptic about that working, though. I had the court address on my driver’s license because that was supposed to help. But it actually just meant that I couldn’t get home whenever Taylor Swift was appearing at Soldier Field, because my house is quite near there. So there are inconveniences. Judges have to take threats seriously. It’s a price of the job, but I don’t think it has any effect on the way they rule in cases.

ROSENTHAL: I have one other point, and it may be a risky one. I don’t believe that, because of the stresses we face, we are forbidden to criticize the work of the courts. We have to be able to do so — including criticizing the Supreme Court. They should be polite criticisms and not threatening in any way. But our jurisprudence depends on judges being willing and able to thoughtfully criticize the work of their colleagues with whom they do not agree. That’s how our law gets better. I also am troubled by the fact we’ve always had judges who use their positions to write about the work of their colleagues in ways that seem designed less to engage in a thoughtful debate about the issues than to pursue some other goal or advantage. That’s destructive, and I really do worry about that.

LEVI: Let me follow up on that, because the specter of politics and judging has been a drumbeat of academics over the last 20 years. Empirical studies often conclude that the president’s party of appointment correlates to certain decisions in certain kinds of cases. From these statistics, academics sometimes conclude the judges are actually partisan, which I, frankly, don’t agree with. But we see that criticism a lot — that judges are partisan — by which I mean that judges are actually rooting for one political party or another. In contrast, the fact that judges have certain characteristics that incline them one way or another in highly controversial or close matters — that’s just the way it is, and I don’t take issue with that.

ROSENTHAL: I agree. Sadly, we are people.

LEVI: We are people. And it’s sad, but it’s actually not sad because this is our system. Judges are elected or appointed through a political process designed to reflect certain values and approaches to the law. So that’s OK, but being partisan is not OK. Are you worried that, yes, the judiciary may be becoming politicized? And if you are, what can we do to snuff that out? Probably all three of us agree that judicial partisanship is a really bad thing.

WOOD: I’m not sure that this is anything new. But judges themselves can at least support those who point out that judges are doing their best job to understand the governing law that applies to a particular case. Look at how you write. I will use a specific example, since he’s no longer with us. Justice [Antonin] Scalia, when dissenting, sometimes got very colorful in his remarks about the soundness of the views expressed by the other side. He would name call and could be very personal and demeaning. And I always thought that was a very corrosive thing to do, because the Supreme Court has hard cases. The fact that there are dissents in approximately a third of the Court’s cases doesn’t shock me at all. I think any of us in this room, if given a big pile of 7,000 cases and told to pick out the 70 hardest, would probably have some disagreements about which to choose. That’s fine. But you don’t want to call the person on the other side juvenile names. This can also be an issue at the courts of appeals.

And I really think that more judges should simply confine their explanation to the merits. As The Godfather suggests, keep it business, not personal. Explain why you’ve come out the way you have and let it be. Let the public decide beyond that — you’re not going to make your argument any more persuasive by adding hyperbole.

My final point: I delivered a lecture on the understudied role of the courts of appeals when it comes to separate writings. The data were not terrific at the time that I did this, but I discovered that — on the Seventh Circuit, at the court of appeals level, and nationally — the separate-opinion-writing rate is only about 3 percent of the cases — in other words, a tenth or maybe even a little less of what it is at the Supreme Court. Why would that be?

I think the answer is pretty straightforward. Most of the cases the courts of appeals entertain are just lawsuits. There’s some criminal appeal where somebody’s complaining about the sentencing guidelines, or it’s a Title VII appeal where either the employer or employee thinks that there was discrimination in hiring or promotion. It’s an ERISA appeal where somebody’s worried about their pension, and on and on. The judges are applying the law. It doesn’t matter which president appointed the three people on that panel. They will come out the same way.

Were there hot-button cases? Of course. There were abortion cases, death penalty cases, and some cases about religion in the public square. Certainly, that’s the 3 percent, but it wasn’t very many. And as long as you understood that people had different views but were acting in good faith, you were fine.

ROSENTHAL: If the phrase “reasonable minds can differ” were used more often, it might take some of the sting out of the tone that we hear. There is far too little acknowledgment of the complexity and difficulty of the issues that make up the 3 percent in the courts of appeals and the higher percent in the Supreme Court — because of course they’re going to take the hardest issues that weren’t able to be resolved by the lower courts and that Congress has been unwilling to resolve.

So how do we make things less corrosive? We should remind ourselves how hard it is and, frankly, be much nicer to each other. Lawyers need to be nicer to each other in the way they write, because we operate off of their briefs. Judges need to be nicer to each other in how we explain our differences in understanding. We may not agree with one person’s resolution, but we must understand that we’re all trying to do the best we can in the hardest cases that this country presents.

That’s a pretty awesome — and difficult — lane to stay in.

LEVI: I think that’s a fine note to end on. Thank you both so much.