The Trumpiest judge yet

0:28Oh yay, oh yay. Sir, that's just flagrant. I mean, fragrant. I mean, flagrant. Mr. Bovey, uh... Can someone get these people a pronouncer? Bovey. Like, like Bowie with a V at the end. Uh, Mr. Bovey, I was just listening to my colleagues. Not you, Amy. Emile Bovey should not be on the Third Circuit as a judge for a lifetime position. Thank you, Senator Booker. Finally, the Emil Bovey experiment on Today Explained. Christmas and Christmas are over, there comes the next tradition to the edge. That big Opel Grill, certainly at your partner. With music, and in the showroom is also the rest of the model palette.

1:20Up to the Opel Grill, on Saturday, 24 January, at your partner.

1:30It's Bovee, right? I'm Bovee, Senator. Bovee, I apologize. No worries. Thank you. Mr. Bovee, you... Today explained Vox, Sean Ramos from Ian Millhiser, Vox, Supreme Court. Ian, why are people so mad about a guy named Emil Bovee? So the concern is that he does not respect the rule of law. I am someone who tries to stand up for what I believe is right. The concern is that he used the criminal justice system to inappropriately pressure elected officials. I'm not afraid to make difficult decisions. I understand that some of those decisions have generated controversy. And then there's some other side concerns.

2:16You know, the Justice Department, when he was working as an assistant U.S. attorney, apparently he was a bad boss. He had a bad temper and there was an investigation that recommended he be demoted from his supervisor role. Have you ever been asked or had to take anger management or behavioral management at the Southern District? No. And then oddly enough, there are a few very prominent conservative activists who have come out against him. And I think the reason why you've seen some conservatives who are concerned about him is because he's a Trump crony. He was one of Trump's personal defense lawyers during the criminal cases against Donald Trump.

2:54and there is a sense that he may not be ideologically reliable. There is a wildly inaccurate caricature of me in the mainstream media. I am not anybody's henchman. I'm not an enforcer. I'm a lawyer. You know, he isn't someone who came up through the Federalist Society and through the conservative legal movement. No one really knows what his views are on things like abortion or religion or the stuff that Republicans have normally looked for. The problem is that he is an ultra-Trump loyalist who does the sorts of things that ultra-Trump loyalists do and is not necessarily a reliable movement conservative who will do the sorts of things that reliable movement conservatives do.

3:42So there have been some high-profile whistles blown on Emil Bovee throughout his confirmation process. Tell us about the whistles and what's been said. One is his handling of the Eric Adams case. So Mayor Adams is still the mayor of New York. There were some very serious corruption and bribery charges that were brought against him during the Biden administration. The Democrat is facing five charges, including bribery, wire fraud, and two counts of soliciting of a contribution by a foreign national. Adams was trying to get the bribery count thrown out, saying the allegations did not meet the legal standard for bribery.

4:25The judge disagreed. And then when Trump came into office, the Justice Department swiftly moved to drop the charges against Mayor Adams. My fellow New Yorkers, today finally marks the end of this chapter. That Justice Department order comes after Mayor Eric Adams curried favor with President Trump for months, including dining with him in Florida. But the thing that's significant is they moved to drop the charges without prejudice. And what that means is that they could at any point bring the charges against him again. This was widely viewed as sort of a corrupt effort to pressure Mayor Adams to make sure that Mayor Adams would order the NYPD to crack down on immigrants, You know, to have this sword hanging over Mayor Adams' head where at any point, if the Trump administration was not happy with him, they could resume these charges.

5:26And Mr. Bovee didn't just lead up the effort to pressure Mayor Adams in this way. But seven Justice Department lawyers, including the U.S. attorney in the Southern District of New York, all resigned in protest over his actions. So this was a big deal. The second thing is you may remember a while back Trump sent a bunch of immigrants who were not from many of whom were not from El Salvador to a notorious Salvadoran prison. And there was apparently a meeting where Mr. Bovee said that the Trump administration may have to say these were his words. Fuck you to the courts and just defy the court orders if they won't let the administration deport these people.

6:13Well, I've certainly said things encouraging litigators at the department to fight hard for valid positions that we have to take in defense of our clients. And have you frequently suggested that they say fuck you and ignore court orders? Is that also something you frequently do such you might not remember doing it on this occasion? No. And as I explained, I have never directed. So did you or did you not make those comments during that meeting? Which comments, Senator? OK, so lots of whistles blown on the way this guy runs an office, on the way this guy might be beholden to the president's interests and nothing else.

6:51Tell us about the kind of office he was just confirmed to. So he's been appointed to the United States Court of Appeals for the Third Circuit. That is the federal appeals court that oversees cases coming out of Delaware, New Jersey and Pennsylvania. Courts of appeals are one step below the Supreme Court. And so there is a lot of concern that this is just going to be a stepping stone so that Trump can then put him on the Supreme Court. Oh, yay. Oh, yay. Oh, yay. We made an episode recently about how Donald Trump was kind of breaking up with the Federalist Society. And I think producer Denise can roll the tape on that right here.

7:34Truth social. I was new to Washington and it was suggested that I use the Federalist Society as a recommending source on judges. I did so openly and freely, but then realized that they were under the thumb of a real sleazebag. Is this like the greatest evidence so far that he's just going his own way on judicial appointments? To some extent, yes. I mean, the interesting thing about this nomination. So, like, Trump's other judicial nominees, most of them, I think if you dig down, like, it's not that hard to find some tie between them and the Federalist Society. And the reason why is because for the last, I mean, certainly as long as I've been in this game, since I was in law school, if you were an ambitious Republican lawyer and you wanted a political appointment, the way that you got it was to be very active in the Federalist Society.

8:26You know, the Federalist Society just has a tremendous amount of power. Bovee is the first Trump nominee that we've seen, at least in this term, that just doesn't come out of that mold at all. He took on the job as Trump's personal attorney. Working that closely with Donald Trump seems to have radicalized him. And he's just coming from a different faction within the legal priesthood than all or nearly all of Trump's first term judges who tended to be Federalist Society loyalist and not Trump loyalist came from. Does that mean he'll likely one day coast to confirmation to the Supreme Court or does that really remain to be seen?

9:09I mean, I think that if Donald Trump nominates him to the Supreme Court and if the makeup of the Senate hasn't completely changed by then, then, yeah, he's going to coast. Like, the Senate just isn't providing any check on Trump's nominees. Like, whoever else Trump picks, that person is still going to be someone who has demonstrated loyalty to Trump on the bench. And there are a lot of judges, you know, Andy Oldham, who sits on the Fifth Circuit, who keeps getting reversed from the left by this by by this Supreme Court. And Naomi Rao, who sits on the D.C. Circuit. And, you know, when I talk to judges there, they actually have a word for this phenomenon.

9:56It's called auditioning. Oh, it's when it's when it's when a auditioning is when a sitting judge goes out of their way to try to catch Donald Trump's eye by handing down really outlandish decisions that they think that Donald Trump likes. There are a lot of auditioners on the courts of appeals. OK, so if he gets the Supreme Court, pretty likely he's going to just walk the party line or walk the MAGA line, walk the Trump line. But it turns out the Supreme Court already pretty much doing that, right? so this supreme court is very sympathetic to trump they haven't ruled in his favor 100 of the time the one thing they broke with him on is they said that if trump wants to deport someone to a salvadoran gulag he has to give them a hearing first before he deports them so i i guess that's something but the this supreme court has been extraordinarily sympathetic to anything that Trump wants from them.

10:51And, you know, someone like Bovee or Rao or Oldham or anyone else that Trump might want to nominate could be worse. But there's only but so much room left for them to get worse. Okay, well, let's talk about the Supreme Court, what they've been up to during their summer recess when we're back on Today Explained.

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15:29This is Today Explained. Ian Millhiser, welcome back. Like, the Supreme Court is, I think, typically on break in the summertime. But you're saying they've been quite busy, actually? Yeah. I mean, it used to be that justices basically had the same schedule as schoolchildren. They would finish up their last cases from the term in June, and then they'd go fly to Europe for however long they felt like being in Europe. But the times have changed. Times have changed. I mean, they still can fly to Vienna if they want, but they have work when they get there. And the reason why is because of the emergence of this thing called the shadow docket.

16:09And we've talked to you about the shadow docket before. The shadow docket refers to asking the court to rule very, very quickly on cases that in the past they would normally give it a lot of time to percolate in the lower courts before they stepped in. But it's been like four years or something. So why don't we just remind people how it works? the shadow docket began as a way to deal with death penalty cases because in death penalty cases the person seeking relief from the supreme court literally will be killed by the state if the court doesn't intervene and and then the case will be moot it was possible for non-death penalty um cases to go up to the justices on the shadow docket but like it was just sort of informally discouraged.

16:58Like lawyers knew that the justices didn't like getting shadow docket petitions. They knew that it was considered to be something that you just didn't do unless it was a genuine emergency. During the Bush and Obama administrations, the Solicitor General only sought shadow docket relief once every other year. So it was an extraordinary event for the government to even ask the justices to, like, skip a case in line, bypass all the ordinary deliberation, and decide it now. And then in Trump's first term, Trump Solicitor General Noel Francisco just started filing shadow docket requests all the time.

17:42Whenever Trump lost in a lower court, there was a good chance it was going to go up to the Supreme Court on the shadow docket. And to many people's surprise, rather than the justices saying, you know, no, you're going to wait in line like everyone else, they race to decide these cases. Trump started winning these cases all the time on the shadow docket. And so now it's just a routine thing where when Trump loses a case in the lower court, he can always go up to the justice on the shadow docket. He does it very, very often. He wins most of the time. And I mean, I should, you know, I should be somewhat nuanced here in that the Justice Department is somewhat selective about the cases that they bring up on the shadow docket.

18:27There's a number of cases that I think they know that even this Supreme Court is going to say, no, that's illegal. And so they've been careful to bring cases. They think that they're going to win, but they win all the time. They've had some big wins on cases that I think they really should have lost on. And the old norm where the justices are supposed to be careful and deliberative and not decide things too quickly just doesn't exist anymore. Tell us about some of the cases that they've won on this shadow docket. So I will tell you about two. These are, I think, the two most alarming ones from the second term.

19:07So one is a case called Department of Homeland Security, the DVD. The issue in the DVD case was that there is a treaty that the United States has signed on to. It is called the Convention Against Torture. And basically what it says is that before we deport anyone, that we have the lawful right to deport to another country, they have a right to object and say, hey, I think I'm going to be tortured if you send me to that country. and then we have to have some sort of a legal proceeding to determine whether that's credible or not, whether they'll actually be tortured. And so Trump claimed to have found a loophole that basically nullifies the Convention Against Torture altogether.

19:51He claimed that what he can do is he can give the people a hearing, and in that hearing, they will object to whatever countries they're going to object to. Say, don't send me to, say, Mexico, because I think I'll be tortured in Mexico. What Trump started doing is after that hearing would happen, he would then say, oh, well, you didn't object to South Sudan. So we're just going to ship you off to South Sudan. This is literally a violation of the European Convention on Human Rights. The Supreme Court has prevented the lower court from requiring the government to afford them notice and an opportunity to challenge their removal to a third country.

20:29These were people who are not Sudanese. These are people who have no ties to South Sudan whatsoever. And the Supreme Court said Trump could do this. So they essentially eliminated the Convention Against Torture. What the Supreme Court said on its shadow docket was that if the government just, after the hearing has already happened, just surprises the immigrants, says, hey, here's a new country that's even worse than the other country that we wanted to send you to. We're going to send you there instead. The Supreme Court said, yeah, we're not going to step in. And we're not going to do anything about that.

21:04Another case that Donald Trump won on the shadow docket, this is a case called McMahon v. New York. I'm Lyndon McMahon, and I've got just as much stroke around here as anybody does. And the issue there is that Donald Trump wanted to fire nearly half of the employees at the Department of Education. education and both Secretary McMahon and Trump himself have been very clear that this is part of a broader effort to shut down the Department of Education in its entirety. Oh, I'd like it to be closed immediately. Look, the Department of Education is a big con job. Department of Education was set up in 1980 and since that time we have spent almost a trillion dollars and we have watched our performance scores continue to go down.

21:50I want the states to run schools and I want Linda to put herself out of a job. Now, the Department of Education was created by Congress. Congress has tasked the Department of Education with doing lots of things. The president does not have the power to unilaterally repeal laws, including the laws that create the Department of Education and that task it with doing certain things. But he is firing so many people that it's not going to be able to do all those things anymore because they aren't going to have the personnel to do it. And the Supreme Court said, that's fine. They didn't explain their order.

22:25It's possible it was a jurisdictional argument that convinced them it's possible it was something else. We don't know because they didn't bother to explain it. So he is getting big, big victories, canceling treaties, potentially eliminating entire federal departments. And he's winning all this on the shadow dock. Which is to say he's winning all this in unsigned votes from Supreme Court justices. So we don't even have reasoning for consequential decisions that will shape this nation's future. Has Donald Trump figured out a workaround here for future presidents? Has he reshaped how a bill becomes a law?

23:09I think what Donald Trump has figured out is that when you are the president and people who are loyal to you control both the Congress and the Supreme Court, you can get away with anything that you want. Justice Ketanji Brown Jackson in particular has written a number of opinions where she's called out the court for how it manipulates the shadow docket. There was a case called Niken v. Holder, and what Niken said was that if you are asking an appeals court to block a lower court's decision, it's not enough to show that you're likely to win the case. You have to have to show a bunch of other things.

23:47You have to show what's called irreparable harm. So you have to show that if the appeals court doesn't step in right away and block the lower court order, you will be harmed in some way that can never be fixed. The Supreme Court seems to have decided that Nikken doesn't apply to Donald Trump. You know, there have been cases, This is what Justice Jackson has said. She said, look, we're not requiring the administration to show that there's some kind of unravelable harm here. And in fact, not only has the court not been requiring the Trump administration to do so, but there have been cases where the Trump administration didn't even try to make an argument that there was some sort of harm that required immediate intervention.

24:30And the Supreme Court stepped in right away. But the court has a Republican majority and those justices don't seem to care. Do you think there's any putting this back in the bottle? I mean, you're saying Trump was using the shadow docket unlike your typical president in his first term. Now Trump is back and he's like breaking records. But do we assume our next president, if we get one, will follow suit? I think there is a way to permanently put this genie back in the bottle and to make sure that whatever we think is a fair rule. I mean maybe we want there to be this shattered docket and maybe we – so long as like the same rules apply to Democrats and Republicans, maybe it's a good thing if the justices just have a whole lot more work than they have historically had.

25:22Realistically, though, I think it's going to require a sustained effort by Congress to get this court in line.

25:36Congress has a tremendous amount of power over the judiciary. It could add seats to the Supreme Court and then the next president could just fill them and then we have a new majority. The Congress controls the Supreme Court's budget. And actually, this Constitution says it can't take away the justices' salary, but it could require the justices to fire all of their staff. It could require the justices to move out of the lovely marble building that they all occupy and instead hear cases in a strip mall in Nob, Alaska. You know, there is no shortage of ways that if Congress was really determined to show the Supreme Court how mad they are at the court's partisan behavior.

26:18Yeah, Congress could rein this court in if it really wanted to. But, you know, unless it packs the court, these justices are likely to strike down a lot of these laws. It would require a sustained effort. And that would require the American people to want the Supreme Court to be reined in. You know, the American people would need to elect a Congress that is determined to reign this court in. And then they have to keep reelecting that kind of Congress as the court pushes back until eventually, you know, the court says uncle.

27:00Ian Millhiser, read him at Vox.com. He's also got books. We need to read more books. That's actually tomorrow's show. Today's show was made by Denise Guerra and Hadi Mawagdi, with help from Amina Alsadi, Gabrielle Burbay, Avishai, Artsy, Patrick Boyd, and Andrea Christensdottir. It's Today Explained.