I hate to put on my cynic’s hat, but I see a weird childlike faith in daddy figures behind the hope the the good daddy, Supreme Court Chief Justice John Roberts, will stop the mad bad dad Donald Trump. The other archetypal story line at work is the hero’s journey, with Roberts as the hero, which has become a fixture of action movies and most sci fi and fantasy novels. the Hollywood version is that the protagonist is up against impossible odds, yet manages through incredible feats requiring stuntmen and the destruction of a lot of vehicles to prevail.
Since we are not in a world of fiction, pinning undue hope on rescue by Roberts seems awfully tenuous. We’ve come across another idea, proposed by former Federal Judge Shira Scheindlin, on the use of civil contempt, which would be within the authority of any judge faced with refusal to comply with court orders, perjury, or other types of defiance of the authority of the court. This would have the advantage of having the judiciary itself thrown its weight against Trump Administration officials giving the rule of law the middle finger.
We have discussed Judge Scheindlin’s idea with a few lawyers and legally-adjacent experts. None of them have found any major flaws. So we are writing about it again and in a bit more detail in the hope that this idea will get traction. One thing we have inferred so far is that criminal contempt has been the subject of far more court cases and hence also legal analysis than civil contempt. So any readers with expertise in civil contempt are very much encouraged to weigh in.
One reason for courts to stand up more forcefully against the Trump onslaught is that it is a politically very bad look for the Administration to fight the judiciary. We ran this tweet before but it bears repeating:
“To cross that rubicon [of defying court rulings] is a big ‘no, no’” for Americans. This court issue is a big loser for Trump.
The belief that Trump must follow court orders is more popular than Mother Teresa: 84% of all adults, 92% of Dems, 82% of Indies & 79% of the GOP. pic.twitter.com/viRxH66YUO
— (((Harry Enten))) (@ForecasterEnten) March 19, 2025
But to return to pinning too many hopes on the Supremes, and particularly Chief Justice Roberts, the Trump Administration is allegedly itching to get before the top court. It believes that its many fights, ranging from DOGE to deportation to DEI, can be boiled down to its theory of a unitary Executive.1 If the Court backs that, it’s game, set, match.
From a Politico interview with former Federal Judge Shira Scheindlin:
Assuming that the judge — Judge Boasberg or any other judge for that matter — eventually concludes that the government deliberately violated a court order, what are the judge’s options?
I can tell you that every former judge I know has been asked this question by somebody in the media, including me. I think the only real option is civil contempt….
You could also sanction the person, and that’s always interesting, because you could have fines that double every day, so it can get serious fast. I don’t know how good at math you are, but a $1,000 fine doubling every day can quickly add up to real money — not for the United States government, but for an individual. If somebody was individually sanctioned, that adds up…
As indicated when we wrote about this idea earlier, $1,000 doubled daily becomes over $1 trillion by day 31. While civil rights laws limit daily fines for criminal contempt to $1,000 per day, there is no cap for civil contempt. A very quick pass at the Just Security Litigation Tracker shows that individual defendants in cases against the Trump Administration include Trump, Elon Musk, Scott Bessant, Pete Folores, Charles Ezell, Marco Rubio, Michelle King, James Wu, and Jennifer B. Higgins. One could argue given the presence of billionaires on this list that ginormous fines are necessary to get their attention.
Mind you, many of the cases agains the Trump Administration’s action do not include individuals among the defendants. And since many are still in progress, it’s not clear how many will go into contempt terrain. However, defying a court’s order is contempt. And the Administration too often has been or has signaled it intends to do just that if it does not like a ruling.
Keep in mind that there are two types of contempt: direct contempt and indirect contempt. As Justia explains it:
Direct contempt results when the contumacious act is committed “in the presence of the Court or so near thereto as to obstruct the administration of justice,”195 while indirect contempt is behavior that the Court did not itself witness.
Far and away the most common type of direct contempt is when a party to a legal proceeding becomes disruptive, such as screaming or physically threatening people in the courtroom. Lying on the stand and missing a scheduled hearing without a valid excuse are also direct contempt. By contrast, failing to honor a subpoena, a false deposition, withholding evidence, and bribing or threatening jurors are indirect contempt.
Anyone who has worked with lawyers advancing new legal theories or uncommon applications of existing theories knows that it can take several attempts before they are debugged enough to fly well. Again, I am not sure whether an aggressive application of civil contempt in the face of unprecedented, Constitution-challenging defiance of court orders would fall in that category, but the Administration would be sure to depict it as such if the judges developed the intestinal fortitude to go this route.
If you read the underlying Politico interview, Judge Scheindlin didn’t consider the idea of criminal contempt as an option because it would take an attorney acting on behalf of the government to pursue that action, and the Department of Justice would not go there. However, she curiously did not consider the idea of designating a special counsel to pursue cases of indirect contempt….although even if the court prevailed, there is still the pesky problem that the Administration might try to bar Federal Marshalls from hauling the miscreants away if jail time were ordered.
Consider another angle suggested by a seasoned litigator:
A judge could really shake things up by jailing the lawyers for acts constituting direct contempts before the court. Back in the olden days when attorneys were counselors at law and not precarious saps telling the client whatever he wants to hear, lawyers feared being held in contempt more than being fired by the client.
As Elon reminds us about the Eichmans and Heydrichs who actually carried out the Final Solution, Trump and DOGE need foot soldiers. If they start getting thrown into jail, the dogs just might stop eating the dog food.
I think that Chief Justice Roberts would back the play of judges maybe growing spines and using their authority as a co-equal branch of government.
Please circulate this post widely. Even if this idea is still too much of an alpha version to be ready for release, there is likely enough of a there there to serve as a basis for action once refined.
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1 By Peter M. Shane at Verfassungsblog:
Through the unlawful firing of National Labor Relations Board member Gwynne Wilcox and a February 18 executive order, entitled “Ensuring Accountability for All Agencies,” President Donald J. Trump is trying to eliminate the independence of independent regulatory agencies. These are the multi-member agencies, such as the National Labor Relations Board, the Federal Trade Commission (FTC), and the Federal Communications Commission, whose members are protected by statute against being fired without good cause. The relevant statutes typically provide also that members will serve specific terms and that neither major party can hold more than a bare majority of seats.
The modern independent agency design, which the U.S. Congress first adopted for the Interstate Commerce Commission in 1887, is intended to foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes.
In contrast, President Trump’s campaign against agency independence is part of his undisguised effort to effectuate a radical dismantling of our checks-and-balances system without actually amending the U.S. Constitution. It goes hand in hand with his efforts to reshape the civil service, praetorian-ize the military, and staff the Administration from top to bottom based on personal fealty, rather than qualifications and proven character.
If President Trump succeeds in neutering the capacity for independent judgment by either individual professionals or agency heads, he will have been enabled by a theory of the constitutional presidency that the Roberts Court has embraced but which ought to be embarrassing in its speciousness. This constitutional reading, now widely known as the “unitary executive theory,” has all but undercut the U.S. Supreme Court’s unanimous 1935 opinion in a case called Humphrey’s Executor v. United States. In that case, the Court upheld the constitutionality of the FTC and held invalid President Franklin D. Roosevelt’s dismissal of an FTC commissioner, William Humphrey, without good cause and in violation of the FTC Act. The Trump Administration has explicitly called for overruling Humphrey’s Executor.
The theory behind Humphrey’s Executor is straightforward. It starts with the recognition that the executive branch of government draws on two streams of legal authority. Some of what it does involves carrying out powers vested directly in the President by the Constitution. Treaty-making and fulfilling the President’s commander-in-chief role are prominent examples. But most of what the executive establishment does—nearly all of what it does in domestic affairs—draws on authority that Congress has given to the executive branch by creating administrative agencies and assigning them missions, such as protecting the environment or enforcing civil rights. The core of independent agencies’ work in this respect involves both rulemaking, which the Humphrey’s Executor Court called “quasi-legislative,” and administrative adjudication, which it called “quasi-judicial.”
What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the President’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the President’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.
Against this entirely commonsense understanding, the unitary executive theory insists on a vision of the Constitution that muddles the text, is weakly grounded in history, and ignores how executive power can easily metastasize into autocracy—a possibility I argued years ago as a hypothetical, but which is now being played out in real time.
The unitary executive theory rests on two foundational premises. The first is that the President, constitutionally speaking, is a one-person executive branch. The President, in the Court’s words, is “the only person who alone composes a branch of government.” The second is that, in vesting “the executive power” in “a president,” the Constitution gave the President the entirety of the government’s executive power— not “some of the executive power, but all of the executive power,” in the words of the late Justice Antonin Scalia, who even italicized the words “some” and “all.”
Beyond these two premises, advocates of the unitary executive theory may differ as to the scope of the precise authorities that Article II confers. But all advocates of the theory share a view that the Supreme Court embraced in a 5-4 decision rendered in 2020, Seila Law v. Consumer Financial Protection Bureau. The idea advanced there was that all executive branch personnel are “subject to the ongoing supervision and control of the elected President.” It follows, according to this theory, that the President must be able, directly or indirectly, to fire anyone in the executive branch. Seila Law extended the President’s removal authority to the principal officer in charge of any single-headed executive agency. The Court held out the possibility, however, that multi-member bodies might remain as an exception to this rule. President Trump wants to overturn the exception, so that he can fire independent board or commission members even without “good cause.”
Given the practical and political implications of the unitary executive theory, it is astonishing to see how little it lines up with the Constitution.