California Judge Near Retirement Contends With Shadow Docket

San Francisco federal judge William H. Alsup, who’s overseen some of the biggest legal challenges to the Trump administration, struggled with the Supreme Court’s emergency docket in what could be one of the last major judicial opinions of his career.

The Supreme Court is using its emergency docket to overrule trial courts that interfere with executive branch hiring and firing decisions, Alsup said in a Sept. 12 opinion. It was part of a ruling finding the Trump administration’s decision to fire thousands of recently hired or promoted federal employees was illegal.

Although Alsup said he would have normally issued an order reinstating the employees, “the Supreme Court has made clear enough by way of its emergency docket that it will overrule” that decision.

Adding that “too much water has now passed under the bridge” since the Supreme Court halted his first order granting probationary workers their jobs back, he instead ordered federal agencies to update the workers’ personnel files and send them letters stating they haven’t been terminated based on performance.

The 80-year-old judge appointed by President Bill Clinton has said he will likely fully retire from hearing cases by the end of the year.

The ruling potentially caps off a tenure of over a quarter century on the US District Court for the Northern District of California, where Alsup has overseen many of the court’s highest profile cases involving cutting edge Silicon Valley technology and the Trump administration’s executive orders.

Since joining the bench in 1999, Alsup has built a reputation for his ability to grapple with and write about tech law. In June, he became the first federal judge in the US to rule on the complicated question of whether generative AI models violated copyright law when they train on millions of books without permission from the authors.

In 2010, Alsup oversaw a sweeping copyright battle between Google LLC and Oracle Inc. involving computer code. He famously taught himself how to program, enough to correct one of the attorneys on a technical coding term in the case.

“He’s such an intellectually curious judge, and he wants to understand every aspect of an issue,” Eric Goldman, a technology law professor at Santa Clara School of Law, said of Alsup’s tech docket earlier this year.

He’s also no stranger to big cases involving Trump and the Supreme Court. Alsup oversaw the University of California system’s lawsuit challenging the administration’s rescission of the Deferred Action for Childhood Arrivals immigration program, ruling in 2018 that the action was unlawful.

In that case, Alsup took the unusually step of submitting statements directly to the Supreme Court, saying one of the Justice Department’s petitions left an “incorrect impression” of his ruling about a discovery matter.

Workers ‘Moved On’

Alsup’s Sept. 12 order said the Trump administration’s Office of Personnel Management, the federal government’s HR department, exceeded its powers and violated the law by directing federal agencies to fire probationary workers.

He had previously issued a preliminary injunction, shortly after the firings, requiring six federal agencies to reinstate the workers. At a series of hearings in San Francisco, Alsup said he was troubled by the government’s decision to fire workers over performance issues when the evidence showed they received stellar reviews.

“It is a sad day when our government would fire a good employee and say it was based on performance when they know good and well that is a lie,” Alsup said at a hearing. “That should not have been done in our country.”

But the Supreme Court in April intervened through its emergency docket, lifting Alsup’s injunction and allow the firings to proceed while the judge considers the full merits of the case.

The high court’s emergency docket orders, which have received increased scrutiny in Trump’s second term, are issued in still-pending cases on interim issues and are typically issued without an accompanying opinion explaining the reasoning.

Those orders don’t offer a clear precedent to follow, but more and more trial court judges have had to infer how they think the high court will rule, said Tom Clark, a political science professor at Stanford University.

“They don’t have a reasoning and a rationale, they just have a forecast of what the Supreme Court will do, which is what the judge is explicitly saying,” Clark said.

The judge’s Sept. 12 opinion said the whiplash of the decisions has meant most workers and agencies have moved on.

“The agencies in question have also transformed in the intervening months by new executive priorities and sweeping reorganization,” Alsup said. “Many probationers would have no post to return to.”

The opinion provides a window into how one judge is navigating the emergency docket, said Stephen Spaulding, managing director of the Kohlberg Center at the Brennan Center for Justice.

It’s “striking” to see Alsup, “in a measured way, spell out the problem, and explain how he’s doing his best to interpret” the Supreme Court’s actions, Spaulding said.

The American Federation of Government Employees, which brought the lawsuit along with other employee unions, applauded the ruling for its clear language declaring the administration’s mass firings illegal. Even without a permanent order reinstating employees, Alsup’s original injunction was significant.

“We know to this day that there are many probationary employees who still have their jobs because of that original injunction,” said AFGE General Counsel Rushab Sanghvi.