Stephen I. Vladeck (Georgetown University Law Center) has posted The Supreme Court, October 2025 Term—Foreword: The Court Against the Courts (140 Harv. L. Rev. (forthcoming Nov. 2026)) on SSRN. Here is the abstract:
The Supreme Court sits atop a judicial system on which it is deeply dependent. It lacks the capacity to superintend more than a fraction of the cases filed each year, and it relies on the “inferior” courts beneath it to develop records, sharpen issues, and enforce compliance with coercive orders. The Chief Justice (of the United States, not just the Supreme Court) is steward of that whole system—not merely of the Court at its apex.
Since President Trump returned to office in January 2025, that system, and federal district courts in particular, has been subjected to a sustained, multi-front assault without precedent in American history: a historic flood of litigation, rhetorical and impeachment-based attacks from the political branches, escalating threats against judges and their families, and mounting executive defiance of court orders.
One might have expected the Supreme Court to be the lower courts’ shield. In this Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, I argue that it has instead been a significant part of the problem. Through an accelerating series of emergency-docket interventions—and through its merits rulings, its rhetoric, and its silences—the Court has stayed, narrowed, or vacated district court orders, often without full briefing, argument, or reasoned explanation, while treating trial judges’ considered factfinding and legal conclusions as provisional placeholders to be revisited at the justices’ discretion. Using seven sets of cases from the past eighteen months, I show that the Court has done significant damage to the formal, practical, and moral authority of federal district courts to hold the federal government to account—all while arrogating much of that same authority to itself, with respect to factfinding, law-finding, the timing and scope of appellate review, and the balancing of the equities.
The cumulative effect has been to recast the district judge from an Article III adjudicator whose orders bind the United States into something closer to an adjunct of the justices. That transformation, I contend, is best understood as one more expression of the judicial aggrandizement—and, ultimately, the “autocratic judging”—that has come to define the Roberts Court, and it poses a serious threat to the rule of law. Re-empowering the district courts, accordingly, should be central to any serious program of court reform. The story of the Supreme Court since early 2025 is, in the main, a story about the Court against the courts.
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