Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
—
The Trump administration keeps losing in the trial courts, and keeps winning at the Supreme Court. Americans who want to believe that the courts will save us have to reckon with the possibility that the Supreme Court will not.
On this week’s Amicus podcast, Dahlia Lithwick spoke with Judge J. Michael Luttig, a Republican-appointed former federal judge on the U.S. Court of Appeals for the 4th Circuit. They discussed Trump’s threat to run for a third term of office as shared by his adviser Steve Bannon, the dangers the Trump administration currently poses to American democracy, and how the courts may still be the country’s last best hope.
Their conversation has been edited and condensed for clarity.
—
**Dahlia Lithwick:**
This is a game that has been played for so long it’s hard to find equilibrium: They say something outrageous—Steve Bannon asserts with confidence that there are plans afoot to get around the Constitution—then they walk it all back. I’m left wondering if we are just chasing after whatever bait they’re throwing out there.
In a sense, whether or not Trump actually seeks a third term is half the problem; subverting the election is another thing you’re deeply concerned about.
**J. Michael Luttig:**
Actually, Donald Trump has seized all the power in the United States of America that would be necessary in order for him to subvert either the midterms next year or the 2028 election, or both, and run for the presidency, and actually be seated as the next president against the will of the American people.
It doesn’t matter what Donald Trump says today or even what he does tomorrow. This is the most significant thing you could say about a president in all of American history.
So where do the rest of us stand today? I’ve decided where I am, and that is that when Donald Trump says he’s going to do something, he will do it. That is the only way that rationally, the rest of the world can regard this president. We dismiss him at our peril.
Donald Trump has intentionally overwhelmed the nation and the federal judiciary from his first day in office. He knows that the federal judiciary—up to and including the Supreme Court—cannot possibly deal with all of his unconstitutional and otherwise illegal conduct as president.
And that’s what we’re seeing in the courts today. The lower courts are trying mightily to honor their oath, to the court and to the person. They are holding Donald Trump accountable for every violation of the Constitution and laws of the United States. But the Supreme Court is doing anything but.
—
You published a piece in *The Atlantic* about six months ago, “The End of Rule of Law in America,” where you wrote, “Tying the nation’s judiciary up in Gordian knots, Trump has gleefully stymied the federal courts with the sheer volume of his unlawful actions.”
Since then, we’ve seen more and more rope added to these Gordian knots. Beyond the volume of cases, we’re seeing restraining orders, injunctions, and appeals courts seemingly reversing them at whiplash speed.
We’re also watching judges across the spectrum raising the alarm in ways we haven’t seen before. For example, Judge Karin Immergut in Oregon essentially saying to the government, *I think you’re just lying.* Judge Sara Ellis in Illinois demanding daily check-ins with Border Patrol chief Greg Bovino. Judge Susan Graber of the 9th Circuit asking those watching to retain faith in the judicial system a little longer.
Ryan Goodman at NYU Law School points to several dozen judges telling the Trump administration they simply don’t believe the Justice Department anymore. This is judges pressing the red button repeatedly. This is DEFCON from judges.
—
**What does it mean when a judge says, “I don’t trust the Justice Department”?**
Part of this is a structural question about whether courts should believe everything that the Trump administration tells them. But from a judge’s perspective, what does it mean when a judge cannot trust the government and says, “I think you’re lying”? This is, as you say, existential.
Carol Leonnig’s recent *New York Times* piece, based on her new book *Injustice* co-authored with Aaron C. Davis, outlined the corruption of the Department of Justice by Donald Trump and his attorney general, Pam Bondi. That is the word: it is corrupt.
The president and the attorney general are, every day, corrupting the Constitution and the rule of law in America.
—
As for the judges, the lower court judges have honored their oath to the letter for the past 10 months, under nothing short of historic circumstances—including threats from the president and the attorney general. Never before in American history have the federal courts been tested in this way.
All the while, the Supreme Court has stood stoic and silent, giving the lower federal courts—district courts and the courts of appeals—zero support.
When one interviewer recently asked me what I would say to the chief justice today, I didn’t hesitate: I said I would tell the chief justice that he is presiding over the end of the rule of law in America. That is what he is doing.
The arguments being made by Donald Trump’s Department of Justice under Attorney General Pam Bondi to the federal courts are outrageous. They’re lawless. They are contemptuous of the Constitution, the laws of the United States, the courts themselves, and even the judges sitting on those cases.
If I were a federal judge still today, the Supreme Court would get an earful. First, Donald Trump and the attorney general would get an earful. I would not stand for this one second.
The federal courts have had it, and they will not tolerate this. It doesn’t matter anymore what the Supreme Court says. The lower courts are determined to support and defend the Constitution according to their oath, and that’s what they’re going to do.
I could not be any prouder of every single judge and every single court in the United States below the Supreme Court. And I speak to a good number of those judges all the time.
—
**Dahlia Lithwick:**
You’re answering what I’ll call the “legitimacy vice” problem. Judges have a deep aversion to breaking the fourth wall—talking outside the four corners of a case or saying the emperor has no clothes. This is not how you all are raised, nor how this job has ever been done.
But I’m hearing you say this is necessary. This is not an excess. This is not selling out the legitimacy of the judicial branch, nor politicizing the judiciary. There’s no one else to say and write these things.
What is your answer to the middle-of-the-roaders who say these judges are just drawing fire, politicizing the judiciary, harming themselves, the dignity of the office, and sounding hysterical?
**J. Michael Luttig:**
Donald Trump, from the first day in office in 2016, and with a ferocity never before seen, beginning Jan. 20, 2017, has attacked the federal courts with a vengeance in an effort to delegitimize the federal judiciary in the eyes of the American public.
We all see it, and every one of those so-called critics sees that too.
The federal courts themselves, speaking through their opinions—not sidebars, not chatter, not gossip—but through their official rulings, are pushing back against Donald Trump.
It is they who are protecting and safeguarding the integrity and very legitimacy of the federal courts.
—
**Dahlia Lithwick:**
And what’s your answer to the nihilists who argue that it doesn’t matter what a district court does in Portland, Chicago, or Florida, because at the end of the day, this will be decided by a Roberts court that has been pretty complacent, if not wholeheartedly supportive of Trump—with very few exceptions?
**J. Michael Luttig:**
Those are nihilists of the Constitution and of America itself. Many of them would tell you they need to lead a revolution against America and its government.
Some literally call for revolution. Many others want a figurative revolution.
We’ve only had one revolution in America, almost 250 years ago. It is not an option under the Constitution today to lead a revolt against it.
That is the very definition of lawlessness in America.
—
**Dahlia Lithwick:**
Does the work of the lower courts matter, given the expectation that the Supreme Court will reverse them?
**J. Michael Luttig:**
You bet it matters. It matters more than what the Supreme Court will do at the end of the day.
I take very seriously—and I gather you do as well—Judge Susan Graber at the 9th Circuit asking, in essence, “Don’t give up on the courts, don’t give up on the judicial system. Keep watching, we’re going to come through.”
—
**Dahlia Lithwick:**
But how does the public do that? Simply asking people to have faith in an abstract idea doesn’t feel like a meaningful call to action.
How do we get straight with the judges calling out for us to help and bolster them? What does that look like for a listener who might be trapped under the assumption that John Roberts, at the end of the day, makes the call?
What does supporting and believing in an independent judiciary look like for a civilian watching with hope and horror commingled?
**J. Michael Luttig:**
Everything in this constitutional republic is in this plea itself—from the federal courts to the American people: please have faith in the federal courts.
That’s the whole story.
The courts can do no more than that until or unless the Supreme Court acts.
But listeners need to focus and think seriously about the plea made by federal judges: *Don’t lose faith in the judiciary, please.*
Please do not lose faith in the judiciary.
That’s the whole story of America today, right there.
—
*End of transcript.*
https://slate.com/news-and-politics/2025/11/donald-trump-third-term-supreme-court-analysis.html?via=rss