Harvard Judge Blasts Justice Gorsuch’s ‘Unhelpful’ Criticism

The US judge in Boston who blocked the Trump administration from cutting off billions in federal research funding from Harvard University had a message for Justice Neil Gorsuch: Back off.

In Wednesday’s blockbuster decision, US District Judge Allison Burroughs wrote that it was “unhelpful and unnecessary” for Gorsuch to criticize how lower courts are handling the torrent of Trump administration lawsuits. The justice, part of a conservative majority that has largely sided with President Donald Trump this year, recently admonished judges not to “defy” the US Supreme Court.

The dueling passages underscored growing frustrations among some lower court judges and the justices over how they’re each navigating the legal fights over Trump’s expansive uses of executive power to achieve his agenda. As cases have reached the Supreme Court on an emergency basis, the justices have routinely issued brief orders, sometimes just a few sentences long — a stark contrast from the fully briefed and argued cases that result in detailed opinions running dozens of pages.

Read More: Harvard $2 Billion Funding Freeze Found Illegal by US Judge

Justice Neil Gorsuch

Photographer: Kevin Dietsch/Getty Images

Burroughs wrote that she agreed lower courts should respect high court decisions. She countered that she and her district court colleagues are doing their best to make sense of Supreme Court orders that are not “models of clarity” and “have left many issues unresolved.”

She continued: “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.”

The White House said the Justice Department will appeal the ruling and has defended the freeze as part of an effort to root out antisemitism on college campuses.

Burroughs held that the administration “used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.” She concluded that the funding freeze violated US law and the Constitution’s free speech protections.

The judge disagreed that a recent case in which a majority of the Supreme Court let the Trump administration temporarily cut off medical research grants — the one that included Gorsuch’s lower court critique — prevented her from taking action now.

The Harvard case wasn’t the type of contract-focused dispute that the Supreme Court said should be brought in a special US court that handles claims against the US government, she concluded.

An entrance to the Harvard University campus in Cambridge, Massachusetts.

Photographer: Cassandra Klos/Bloomberg

Barring the administration from terminating or freezing grants to Harvard “might result in money changing hands, but what is fundamentally at issue is a bedrock constitutional principle rather than the interpretation of contract terms,” she wrote.

In recent months, other lower courts have rebuffed the Justice Department’s arguments to treat the Supreme Court’s emergency orders — commonly known as the “shadow docket” — as applying broadly to other cases. One Washington judge wrote that it would be “judicial hubris” to read “tea leaves” and base a decision on what the justices might do later. In another case, a San Francisco judge referred to a Supreme Court order as “terse” and “inherently preliminary.”

During a hearing this week, US District Judge William Young, who handled the medical research grant case that went before the justices, offered something of an apology from the bench to Gorsuch and Justice Brett Kavanaugh. Young said he did not intend to take actions that could be seen as defying the Supreme Court, according to the New York Times.

“I simply did not understand that orders on the emergency docket were precedent,” the judge reportedly said. “I stand corrected.”

A spokesperson for the Supreme Court didn’t immediately respond outside regular business hours to a request for comment from Justice Gorsuch.

The case is President and Fellows of Harvard College v. US Department of Health and Human Services, 25-cv-11048, US District Court, District of Massachusetts (Boston).

--With assistance from Greg Stohr.

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Peter Blumberg

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