Lower Courts Are Saving The Rule of Law — Now the GOP Wants to Stop Them
If “justice delayed is justice denied,” the lower courts are playing a crucial role in responding to the near-daily injustices from the Trump administration. Dozens of judges across the country appointed by many different presidents have largely ruled against Trump’s unlawful actions.
But federal district court judges are barely keeping up with the tide of illegal orders. And now, both the conservative-majority Supreme Court and Republican lawmakers in Congress seem determined to slow them down by interfering with their ability to issue nationwide injunctions.
Preliminary injunctions are one of the primary tools at judges’ disposal for stopping unlawful behavior. If a judge recognizes that a presidential action seems to violate the law or clearly harms people, an injunction presses pause until the court can fully assess the challenge and rule on the merits, especially if the challenged policy may not withstand the court’s scrutiny. Injunctions are all about maintaining the status quo so as to prevent very obvious threats and disruptions before consequences can play out.
These injunctions are also essential for ensuring nationwide consistency of the rule of law. Imagine if courts in one part of the country issued only a limited injunction on Trump’s attempt to overturn birthright citizenship but courts in another part didn’t. In the hypothetical interim, someone could pass from one state to another and their citizenship status would change. National injunctions help ensure that the protections of federal law don’t change suddenly or put people in murky legal jeopardy.
In just the first three months of Trump II, injunctions are doing essential work against his anti-constitutional executive orders. They are protecting families from being separated, keeping people in their jobs, ensuring people get fairly paid for the work they do (or already did), and upholding fundamental concepts of the Constitution like due process. Nationwide injunctions exist specifically to protect against bad-faith government actions like we’ve seen from this administration.
It’s no surprise then that House Republicans passed a bill they brazenly called the “No Rogue Rulings Act” (NORRA), which would severely kneecap judges’ ability to issue nationwide injunctions. Under NORRA, judges could only provide relief to the people who brought a lawsuit, even if plenty of other people were already affected or could be subsequently. The clear goal of the legislation is to buy time for Trump to get away with as much harm to as many people as he can before judges can rein him in.
We can’t always count on our courts to do the right thing, but we certainly need them to be empowered to try.
For example, Judge Edward Chen, an Obama appointee in California, ruled in late March that the Trump administration was blocked from revoking Temporary Protected Status (TPS) from some 350,000 Venezuelans living in the U.S. In mid-April, the 9th U.S. Circuit Court of Appeals agreed with Chen’s ruling and kept his order in effect. Under NORRA, however, Chen might have only been able to protect the seven individuals who filed the suit as opposed to everyone who faces the same threat. Republican lawmakers would have each of those 350,000 file their own suit to get the same relief and any who didn’t would still be vulnerable to the administration’s unlawful actions.
Unfortunately, we are increasingly seeing circuit courts and even the Supreme Court itself issuing stays on lower-court injunctions and restraining orders as well, endorsing unlawful behavior by the Trump administration without even considering the cases on the merits. This continues the trend of the Supreme Court’s conservative majority using its “shadow docket” to advance a dangerous partisan agenda — without any requirement to explain themselves or take accountability for doing so.
When the Supreme Court recently ruled 5-4 to allow the Trump administration to deport people under the Alien Enemies Act for now, the liberal justices were direct in their rebukes. Justice Sonia Sotomayor called out the “grave harm” many will face and accused the conservative majority of rewarding Trump’s efforts to “erode the rule of law.” Justice Ketanji Brown Jackson was even less subtle, invoking Korematsu v. U.S., the infamous 1944 decision allowing the internment of Japanese Americans.
“We are just as wrong now as we have been in the past,” Justice Brown wrote, “with similarly devastating consequences.”
No doubt, judges can abuse the power of nationwide injunctions to inflict — rather than prevent — harm. Conservatives are notorious for challenging liberal policies by filing lawsuits in specific parts of Texas where they can guarantee their case will be heard by a sympathetic judge. This forum shopping has led, for example, to Judge Matthew Kacsmaryk, a Trump appointee, attempting to block nationwide access to mifepristone, a safe drug that has been commonly used in abortions for decades. Judge Reed O’Connor, a Texas judge appointed by George W. Bush, has infamously issued injunctions blocking LGBTQ+ protections in education and health care, COVID-19 vaccine requirements for Navy Seals, and ghost gun regulations. (The Supreme Court notably just overturned that ruling.)
These injunctions from conservative judges are hardly in good faith. Unapologetically partisan judges are weaponizing the status quo to block liberal policies they simply don’t like. In many cases, they were able to block Biden policies for so long that they never got a chance to take effect before Trump took office and reversed them. All too often, these judges are blocking policies that actually help make people safer or more protected under the law — the very opposite of the abusive chaos we’re seeing from this administration.
What is happening in 2025 is something very different — not activist judges bending the law to their will, but rather judges preventing Trump from doing just that. In a mere few months, this administration has committed countless acts that are unlawful on their face. It is an intentional effort to see just how much they can get away with, just as they did with multiple Muslim ban attempts during Trump’s first term. We need courts that can respond swiftly to these harms — before more dutiful workers are fired, before more sensitive data is compromised, and before more innocent people are abducted and disappeared to a foreign prison.
There are sensible reforms to preliminary injunctions that may be worth considering at another time. But by casting dozens of judges as “rogue” for simply upholding the rule of law, Republican lawmakers do not have justice in mind. They want to dismantle every obstacle to authoritarianism they can find. Like their plants on Texas’ courts, they only care about their agenda winning — damn the consequences for the rest of us.
Our courts are our last defense for democracy and the rule of law, and NORRA should die in the Senate. We can’t always count on our courts to do the right thing, but we certainly need them to be empowered to try. With new attacks every day, we’re bleeding out; it’s hardly the time to discuss a ban on tourniquets.
Keith Thirion is the interim co-president and vice president of strategy at Alliance for Justice and co-president at AFJ Action. As a contributor to Democracy Docket, Thirion writes about the U.S. Supreme Court, judicial reform and the importance of state courts.