Justices’ Emergency Orders for Trump Sow Cracks in Judiciary (1)

The Supreme Court is creating discord within the judiciary with its repeated grants of emergency relief for the Trump administration, while empowering the president to fight any lower court judge’s ruling.

That was demonstrated again this week, as the Supreme Court paused multiple lower court decisions against President Donald Trump via brief, unexplained orders. One temporarily barred immigration authorities from targeting people based solely on their ethnicity, language, and job locations in the Los Angeles region.

The conservative majority’s approach is disrupting lower courts, leading some judges to voice frustration about the lack of guidance they’re getting and critics to argue the justices are overstepping.

It also comes as the administration attacks lower court judges who have issued the initial rulings against Trump’s policies, with many of those decisions later being overturned by the conservative justices.

The high court now appears to be on a collision course with other major disputes over tariffs and Trump’s attempted firing of Federal Reserve Governor Lisa Cook.

A federal judge on Tuesday blocked Cook’s firing while writing she was “not persuaded” that past high court orders on agency firings meant she had to side with Trump.

“Many of our district judges are under enormous pressure right now,” said Marin Levy, a Duke University law professor. “Those who are deciding cases involving the executive branch have faced widespread harassment and the possibility that their orders will not be met with compliance.”

“One would hope under these circumstances that district judges would receive as much institutional support as possible—certainly no one should be dressing them down,” Levy added.

Defying Orders

The tensions came to a head when Justice Neil Gorsuch admonished judges not to “defy” orders as the court in a 5-4 vote lifted Boston district judge William Young’s decision temporarily stopping Trump from cutting medical research grants.

Gorsuch, in a concurring opinion joined by Justice Brett Kavanaugh, said the court’s emergency order allowing grant cuts to stand at the Education Department was a directive for Young, and that the court’s vote represented the “third time in a matter of weeks” it intervened in a case controlled by precedent.

Young in a subsequent hearing in his courtroom offered an apology, though he added that, “I simply did not understand that orders on the emergency docket were precedent.”

Other trial judges also pushed back. “This court is doing its best to adjudicate this case under the governing legal standards; here, there is little precedent to follow where the Supreme Court did not explain its reasoning in the stay order,” US District Judge Susan Illston said in a Tuesday opinion.

Such an exchange shows that “this is not a very workable situation for the judiciary,” said Payvand Ahdout, a University of Virginia law professor.

The Trump administration’s frequent legally questionable actions are putting “a lot of pressure on the federal court system,” Ahdout added. But the high court’s willingness to vacate lower court decisions is often leaving judges without guidance, and the rate of its actions may also be pushing some to delay the effect of their orders.

“It seems to be disempowering district judges to order relief in different kinds of cases, because it seems that the district court judges think the other shoe might drop,” she said. “Fifteen years ago a district court judge wouldn’t be doing that.”

Emergency Docket

Trump’s Justice Department has filed more than 20 emergency applications to the justices so far during his second term.

In public remarks in July, Kavanaugh said that as administrations have relied more on executive actions to enact a president’s agenda, more challenges to those moves have landed before the justices. He said the justices must decide what the executive action’s status will be for the next year or two while the case is being litigated.

But he also said the justices don’t want to write too much and make the lower courts think they’re bound to the Supreme Court’s initial finding in a case’s early stage, which might not line up with their ultimate ruling.

To be sure, the court faces no requirement to ever issue an opinion, liberal Justice Sonia Sotomayor said during a Tuesday appearance on “The Late Show with Stephen Colbert.” But there’s an expectation for them because “people will respect the court only if they understand why we’re ruling,” she said.

The justices also have great discretion over their docket, said John E. Jones III, a former trial judge for the Middle District of Pennsylvania, and they could disincentivize the administration from filing so many emergency application if they started rejecting some.

“They seem almost unnaturally, if you will, inclined to take up these emergency applications from the administration,” Jones said.

On Tuesday, the justices agreed to hear a case on Trump’s sweeping tariff regime on expedited schedule, after multiple lower courts ruled the actions flouted federal law.

Trump Judicial Attacks

The offensive against the federal judiciary by Trump and his allies, which has included articles of impeachment filed by House Republicans and an administration lawsuit against all of Maryland’s district judges, has gotten some pushback from sitting judges.

US District Judge Thomas Cullen, a Trump appointee in Roanoke, Virginia, who dismissed the lawsuit against the Maryland judges, wrote in his opinion that the “concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.”

Chief Justice John Roberts, who leads the federal judiciary, has said only that impeachment is an improper way to challenge an unfavorable ruling.

But while district court judges recognize they’ll be reversed, the way the Supreme Court is doing so is on another level, Jones said.

“It’s not just that the administration is name calling and engaging in inflammatory rhetoric that made judges actually feel at physical risk in the lower courts,” Jones said. “But then they have the court that is their north star, the Supreme Court of the United States, writing things that sort of rebuke and chastise them.”

The court’s junior member, Amy Coney Barrett, on Monday said the justices are “not deciding cases just for today” when asked about the Trump administration’s success rate at the Supreme Court.

She acknowledged there “have been a lot” of emergency requests this term but argued that the trend started a few administrations ago. “It’s combination of increasing use over time, not just this administration, of executive orders,” she said on Fox News while promoting her new book.

“And I think that all the judges, district judges, too,” she said, “are just doing the best we can with a lot of litigation.”