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Judges retain a special status even after they hang up their robes. Addressing them in a 2020 article, an American Bar Association official, Marla Greenstein, wrote that “the public will forever view you as a living representative of the judicial system.”
In recent months, coalitions of retired judges have drawn on their distinctive positions to file forceful briefs supporting challenges to what they said was lawless conduct by the Trump administration.
Such briefs are, in one sense, nothing new. It is not unusual to see, for instance, a friend-of-the-court brief from a handful of retired judges concerned about a miscarriage of justice in a criminal case. But ones featuring scores of former judges taking issue with presidential initiatives seem to be on the rise.
Such briefs have attracted critics, who say it is unseemly for retired judges to trade on the prestige of their former positions. But there is reason to think the recent filings have been influential.
On Friday, a federal judge in Florida took a motion from 35 former federal judges very seriously. She ordered President Trump to respond to their request that she reopen a case the administration had used as a vehicle to create a $1.8 billion fund to compensate his allies and to shield him from tax audits and liabilities.
The former judges said the asserted settlement of the case was the product of collusion and fraud. That argument has been made far and wide, but it may have taken on special force coming from people who, as they put it in their motion, “have dedicated their professional lives to the administration of justice.”
It is possible, of course, that the judge overseeing the case, Kathleen Williams of the Federal District Court in Miami, would have taken similar actions without outside prompting or spurred by someone else’s filing. But she seemed to welcome a motion from her former peers.
‘The Federal Judges Are Infuriated’
Even larger groups of former judges have filed supporting briefs in other cases.
In a Supreme Court case on protections for immigrants, more than 175 former judges filed a brief in March arguing that the court’s emergency orders do not count as precedent binding lower courts if the justices did not give reasons. Recent emergency orders have tended to come with explanations.
In May, more than 100 former judges urged the federal appeals court in Boston to address what they called a pattern of abuse by immigration officials, including moving detained immigrants around the country to thwart court challenges and “a broader pattern of disrespect by ICE for judicial process and orders.” The case is pending.
Harold Koh, a professor and former dean of Yale Law School, is among the lawyers for the former judges in the Boston case.
“I thought we’d get about 20 judges, which is still impressive, and instead we got 135,” he said, adding that the surge of interest was driven by a threat to the rule of law.
“This is no longer about ICE versus the detainees,” Professor Koh said. “It’s about ICE versus the courts. The federal judges are infuriated.”
Perhaps the most prominent of the retired judges, Michael Luttig, signed all three of those briefs. Judge Luttig was appointed to a federal appeals court by President George H.W. Bush, served for 15 years, and was considered for a seat on the Supreme Court by President George W. Bush.
He is now a harsh critic of the Trump administration, and he said current and former judges must speak up.
“The courageous voices of the federal and state judges of the United States,” he said, “are the only voices that can and have been heard above the deafening din of partisan political rancor that is literally threatening our nation.”
Asked about the role retired judges should play in general and in the challenge to the $1.8 billion fund, Abigail Jackson, a White House spokeswoman, responded by criticizing sitting judges.
“President Trump has faced a historically unprecedented number of injunctions by liberal lower-court judges, the same judges who would rather push their own policy schemes and undermine the administration’s lawful agenda,” she said in a statement.
Todd Blanche, the acting attorney general, told lawmakers on Tuesday that the administration was withdrawing plans for the fund but would continue to shield Mr. Trump from I.R.S. audits. Mr. Trump’s response to the retired justices’ brief is due June 12.
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President Trump at the White House last month. Credit…Doug Mills/The New York Times
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