Federal Judges Are Fed Up With SCOTUS

Lower court judges overseeing the avalanche of lawsuits against President Donald Trump’s powergrab are increasingly voicing their concerns and frustrations with the Supreme Court’s handling of the second Trump administration thus far.

In recent court opinions and rare media interviews, judges have critiqued the high court for overturning lower court rulings while offering little to no legal explanation. The practice, judges have said, is unleashing uncertainty throughout the federal judiciary and hampering lower courts’ abilities to defend the rule of law.

They have also accused SCOTUS of failing to protect the integrity of the judiciary amid Trump’s unprecedented assault on the courts.

Currently, no legal challenge to Trump’s second-term policies has reached the Supreme Court through ordinary proceedings.

Normally, after working their way through district and appellate courts, cases are filed to the Supreme Court’s merits docket. If accepted, merits docket cases are entitled to formal briefs and oral arguments and are resolved with lengthy written opinions detailing the legal reasoning of the majority and including any concurring and dissenting opinions.

Every action SCOTUS has taken in Trump-related cases this year has instead been through its emergency — or “shadow” — docket. 

Unlike its traditional merits process, cases that go through the court’s emergency docket normally do not undergo full briefing or oral argument and are usually decided in just a few days, often through unsigned and unexplained orders.

Historically, the court employed the emergency docket sparingly to swiftly resolve procedural matters or to maintain the status quo in cases. However, over the past decade, the court has increasingly made consequential and controversial decisions through the emergency docket, and this trend has exploded with Trump’s second term. 

Seeking to swiftly enact his aggressive and legally dubious policies, Trump has repeatedly asked the Supreme Court to intervene after receiving an adverse ruling from a lower court. In the seven months since he returned to the White House, Trump has filed over 20 emergency applications to the court’s shadow docket — a record number in such a short amount of time.

In response to his requests, the court’s Republican-appointed majority has sided with the government nearly every time. They’ve granted the president broad exemptions from normal legal and legislative procedures and given him extraordinary control over the executive branch — often without detailing their reasoning.

The court’s unwillingness to explain itself while handing Trump a slew of far-reaching legal victories has drawn a flood of criticism from legal experts.

Federal judges are weighing in now, too.

Almost a dozen federal judges across the ideological spectrum in rare interviews with NBC News said the Supreme Court is undermining the judiciary by not explaining its rulings and not defending against Trump’s attacks.

By making landmark decisions and overturning lower court orders through brief, unsigned and unexplained orders, SCOTUS is creating unnecessary legal confusion while giving the public the impression that federal judges erred or abused their power, the judges told NBC News.

In doing so, judges said SCOTUS is shirking on its responsibility to interpret and apply the law, which risks further eroding public trust in the judiciary by bolstering Trump’s false claims that the lower courts are only ruling against him because they are “biased,” “corrupt” or “lunatics” guilty of “sedition and treason.”

“Judges in the trenches need, and deserve, well-reasoned, bright-line guidance,” a judge told NBC News. “Too often today, sweeping rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide.”

Several of the judges said Chief Justice John Roberts must do more to defend federal judges, who are now routinely targeted by the president and his allies after ruling against the government.

Since the start of Trump’s second term, Roberts has publicly rebuked attacks on judges once: When Trump called on Congress to impeach Judge James Boasberg for ruling against his use of a wartime law to indiscriminately remove people from the U.S.

“It is inexcusable,” another judge said of the Supreme Court justices. “They don’t have our backs.”

In a ruling this week over Trump’s attempt to strip research funding from Harvard, Judge Allison Burroughs publicly critiqued the Supreme Court for expecting lower courts to treat its emergency orders as binding legal precedent — even when the informal orders appear to overturn longstanding court precedent.

“This Court understands, of course, that the Supreme Court, like the district courts, is trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving,” Burroughs wrote.

“Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for “defy[ing]” the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

Burroughs’ inclusion of “defying” was a nod to Justice Neil Gorsuch’s recent reproach of lower courts in an emergency order last month. 

While allowing Trump to cancel almost $800 million in National Institutes of Health (NIH) grants, Gorsuch accused lower courts of deliberately ignoring the high court’s orders.

“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Gorsuch wrote in an opinion joined by Justice Brett Kavanaugh. 

“This is now the third time in a matter of weeks this Court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” Gorsuch claimed, referring to the court’s emergency orders as “precedents.”

Gorsuch, a Trump appointee, went further, claiming that the Supreme Court’s intervention in some Trump-related cases “should have been unnecessary,” but bad behavior on the part of lower courts prompted the high court’s involvement.

Much of Gorsuch’s ire was directed at Judge William Young, the district judge overseeing a lawsuit challenging Trump’s attempt to scrap NIH grant funding. Young, who was appointed by President Ronald Reagan in 1985, apologized to Gorsuch and Kavanaugh in a court hearing this week.

“Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States,” Young said.

“I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer,” he added.

Dissenting to the majority’s NIH decision, Justice Ketanji Brown Jackson accused her conservative colleagues of “Calvinball jurisprudence,” referring to a fictional game from the comic strip “Calvin and Hobbes.”

“Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins,” Jackson, a Biden-appointee who has denounced the court’s use of the shadow docket, wrote.

Kavanaugh, who was also appointed by Trump, struck a more conciliatory tone with lower courts during a judicial conference this week.

“Keep doing what you’re doing,” Kavanaugh said while also urging appeals judges to “recognize the difficulty” trial judges face in having to make quick decisions in high-profile cases, saying they “operate on the front lines of American justice.”

Appearing to respond to NBC News’ report, Kavanaugh defended the court’s use of the shadow docket, though he acknowledged that its emergency orders “can lead to a lack of clarity in the law and can lead to some confusion.” He chalked the confusion up to disagreement among the nine justices.

“It’s possible we screwed up, very possible, we’re human,” Kavanaugh said. “But it’s also possible, and oftentimes is the case, that it’s the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult.”

Kavanaugh did not address why lower courts should treat the Supreme Court’s emergency orders as precedential if justices don’t explain the legal reasoning they used in reaching them. However, he did suggest renaming the emergency docket from the “shadow” to the “interim” docket.

“Ah yes, because the problem worthy of public debate is what we *call* it when SCOTUS decides major issues without full briefing, argument, or written opinions — not, you know, what the Court is actually *doing* in these cases,” a Georgetown Law professor and shadow docket scholar Steve Vladeck said on social media.