As part of the Society for the Rule of Law’s annual convening Wednesday, the organization held a panel discussion titled, “The Judiciary in the Maelstrom: Can an Indispensable Branch Withstand the Storm?”

The panelists were retired Fourth Circuit Judge Mike Luttig, retired D. Mass. Judge Nancy Gertner and retired D. Md. Judge Paul Grimm. Lawfare’s Ben Wittes moderated.

When Wittes asked the former judges about how the lower courts have acquitted themselves in the last 10 months, all three were effusive.

The judges have “met the moment in a way that’s extraordinary for the country and extraordinary for [the branch],” Gertner said. “These judges have issued 60- or 100-page opinions in a matter of days, held expedited hearings, held expedited briefings. These are all novel cases […] in areas they haven’t had to address before.”

“You wouldn’t for a nanosecond know, based on the opinions, whether a [District Court] judge was appointed by a Democratic or Republican president,” Grimm added.

Grimm then spoke about the extraordinary way in which lower court judges have been able to do their jobs despite the record number of threats they’re facing. “There’s been nothing comparable to the scale” of current threats, he noted.

Said Gertner: “Judges have been subject to […] not just threats from lunatics but threats from legislators and threats from the President, so that has an impact on the bench — not reflected in their decisions so far but reflected in their personal decisions. One judge I know had to move since the Marshals said they could no longer protect [the judge] in the house they were living in.”

Luttig said he concurred with Grimm and Gertner regarding how the lower courts have conducted themselves, and then said that, in a knock on the Supreme Court’s emergency docket, he’d take the time to explain why he agreed with them, which he did.

“The lower federal courts have honored their oaths to the Constitution the past 10 months,” Luttig said, “and have brought further honor to the lower federal bench […] when the nation most needs them.”

Luttig had other, more direct things to say about the Supreme Court’s emergency docket.

“The Supreme Court [isn’t] issuing opinions,” he said. “It’s staying 50-, 100-page opinions without one single word of reasoning or judgement. When the Supreme Court does that, it’s exercising nothing but raw power. But the Supreme Court has no raw power. If I were sitting, and the Supreme Court said that about opinion, I’d have some choice words to stay in response.”

Added Gertner: “The shadow docket has all the formality of notes on a napkin.” Regarding Justice Gorsuch’s criticism of D. Mass. Judge William Young, she said it “has had the opposite effect of what the Supreme Court has intended” — that is, it’s galvanized, in her view, the lower court judges to speak out in defense of their District Court and Appeals Court colleagues.

What makes the job of lower court judges even harder, said Grimm, than vague dictates from SCOTUS is that you have case “where you’re wondering whether the information you’re being given is accurate.”

Added Wittes: “The government is lying in a bunch of [litigation], which is not something you’d expect — the DOJ counsel acting in bad faith. They (the DOJ) have already defied the federal courts in micro ways and in macro ways.”

The panel talked about what judges could do to ensure that DOJ attorneys were acting in good faith.

In short, there are two remedies that were mentioned: criminal contempt and civil contempt. Contempt orders, as Gertner noted, must be brought be DOJ or, if DOJ demures, by a special counsel (which is problematic given how reticent most folks are these days about such appointments).

The enforcement of orders is done by the U.S. Marshals Service, but of course, the Marshals are overseen by DOJ.

The end of the conversation focused on ways to get the message of the importance of federal judges’ work out to the American people.

Grimm noted how the overwhelming majority of Americans have never engaged with the federal courts. “When was the last time there was a movie made about a judge who worked 10 hours a day, seven days a week to try to get to the right answer?” he said.

“If 1,000 people read my Bloomberg op-ed, that’s a home run, but if I go on X and say hemorrhoid cream will fix my wrinkles, eight million people will see it,” Grimm added.

“We have to engage with the American people so they understand the vital role federal judges play. The rule of law cannot exist without the public, and until we can [drive home] that message, then all the liberties we all cherish will be in grave peril.”