ICYMI: Ranking Member Raskin’s Remarks During Meeting of the Judicial Conference

Washington, D.C. (September 25, 2025)—On Tuesday, September 16, 2025, Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, spoke at the Judicial Conference’s meeting. Below are Ranking Member Raskin’s remarks, as prepared for delivery. 

Ranking Member Jamie Raskin
Prepared Remarks for the Judicial Conference
September 16, 2025

Thank you, Chief Justice Roberts, for the invitation. 

Forgive my directness here but the times are serious, as you know, our time is short. I have just five minutes and don’t want to trespass on Senator Cruz’s time.

Sometimes these days I feel as if all the foundational principles are being trampled and lost.

Often, I hear my colleagues in the House, and these are fellow Democrats, get up to protest some Executive usurpation of legislative power and they begin their lament with the plaintive cry, “We are a coequal branch of government. . .”

And I always feel they have lost the argument right there just by repeating that fifth-grade dogma.

First of all, co-equal is not even a word. It’s an embarrassing redundancy like “very unique” or “irregardless.”

But there’s a reason all legislative power is vested in the Congress and there’s a reason it’s in Article I. The Founders had a revolution against monarchy and its constant assaults on liberty. In America, the Framers determined, only the representatives of the people would have power to declare wars, pass budgets, impose taxes and tariffs, and so on. Article I is pages and pages of all the powers vested in Congress. Then you get to Article II, which is tiny. The key paragraph says a president shall be removed from office upon impeachment for, and conviction of, treason, bribery and other high crimes and misdemeanors. If we are co-equal, why do we have the power to impeach, try, convict, remove and permanently disqualify the president and he doesn’t have the power to impeach, try, convict, remove and disqualify us?

The core job of the president is plain: “To Take care that the laws are faithfully executed.”

That’s it. Not abused, not thwarted, not impounded, not redirected, but faithfully executed.

A lot of the cases entering the federal courts are variations on this theme.

Here’s the remarkable thing: Americans have brought over 300 cases in federal district courts against the Administration so far for usurping legislative powers, defying federal laws, or violating the rights of the people. This summer, researchers found that plaintiffs were winning an astonishing 77% of the cases in the district courts. Moreover, they found that President Trump was losing about equally before Republican-appointed judges (72%) and Democratic-appointed judges (80%).

The numbers in the federal circuit courts of appeal are similar, with plaintiffs against the Administration winning overwhelmingly and again without a sharp partisan valence to the appeals courts’ voting. A good example is the birthright citizenship case where four district court judges, two appointed by Republican presidents and two appointed by Democratic presidents, all struck down the President’s purported negation of birthright citizenship. Then, on appeal, three circuit courts again all ruled against the Administration. 

But everything is flipped when the cases come to the Supreme Court. 

Over the past nine months, the Administration has introduced a long list of emergency applications, each asking the Justices to examine essential questions about executive branch powers. While there are many troubling trends in appellate litigation today, the Supreme Court’s frequent use of the so-called “Shadow Docket” to resolve these questions provokes the most concern and alarm in our Members.

Although there are undoubtedly some emergencies best handled on the Shadow Docket, the practice of regularly handing down significant decisions without the benefit of a full briefing, equal-time oral arguments, or serious judicial debate and deliberation is deeply corrosive to essential rule-of-law principles. The practice is opaque rather than transparent, inscrutable rather than accessible and cryptic rather than clearly directive. It gives the public no real guidance, leaving pundits, professors and podcasters to divine its meaning for a befuddled public. 

The cumulative results of these emergency orders are giving the public heartache. Over the past nine months, the Supreme Court has decided 21 emergency applications filed by the Trump Administration. It has sided with the administration more than 90% of the time. With no written opinions to accompany these orders, the people wonder why hundreds of judges below are overwhelmingly deciding for Congress or the people but when the cases go to the Supreme Court, the Justices are overwhelmingly using the Shadow Docket to decide in favor of President Trump. 

What accounts for the dramatic difference between the lower courts, where the President is losing in the overwhelming majority of cases, and the Supreme Court’s Shadow Docket, where the President is winning virtually every time? Well, because the Court refuses to explain itself, we simply have no idea.

The cognitive dissonance we experience is corrosive not only of our faith in the rule of law but our confidence in the survivability of our political institutions which depend on constitutional fidelity.  

Reliance on the Shadow Docket undermines the ability of the other levels of the federal judiciary to follow precedent and correctly apply the Court’s meaning. It also undermines Congressional power to legislate within the bounds of the Constitution.

In 2021, Justice Alito chastised Congress for raising that question. He told us that “[t]he suggestion that these emergency rulings definitively decide important issues is false.” He derided the idea that emergency relief orders make precedent on the underlying substantive issue. 

Four years later, the Court has rapidly been reversing this position. In Trump v. Boyle, the Court cited directly to its earlier Shadow Docket decision in Trump v. Wilcox suggesting that “[a]lthough our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” 

And just a few weeks ago, Justice Gorsuch, crossed the Rubicon, admonishing a lower court judge in National Institutes of Heath v. American Public Health Assn., and writing, “[l]ower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” He went on to say that “this Court often addresses requests for interim relief…And either way, when this Court issues a decision, it constitutes a precedent that commands respect in lower courts.”

The confusion here is evident. Orders emerging from the Shadow Docket cannot be entirely non-precedential, as Justice Alito told us, casually informative, as Chief Justice Roberts suggested, and binding precedent, as Justice Gorsuch commands. Simply put, the Court has got to pick a lane. If emergency orders are non-binding, the Court should say so. If they are precedent, then the Court should tell us that—but they should understand that the lower courts will be left to guess where the Supreme Court will land when it finally hears a case in full.

And, while the Court is silent on these matters—except to rebuke federal judges who are doing their best to interpret its orders under wildly inconsistent instructions—we should all understand the stakes. We know that threats to the security of federal judges and their families and their staff are at an all-time high. Every judge who considers a case involving the Trump Administration must be concerned, not only for the parties in his or her courtroom, but for his or her own personal safety. I hope Justice Gorsuch will consider the dangers we face before he next admonishes judges for not following the law.

Fortunately, it is within the power of the judicial branch to right the ship. Let’s get back to first principles.

The hallmark of Supreme Court decision-making requires gathering the facts, carefully interpreting the law, and producing a reasoned public opinion that lower courts can rely upon when considering future legal disputes. The lower may need to move quickly—but the Supreme Court, as the final arbiter, almost always has the benefit of time to reach reasoned opinions.

As Justice Jackson wrote in Brown v. Allen, “We are not final because we are infallible, but we are infallible only because we are final.”

I thank you all for your time today.