The Failed Lower Court Revolt

Shortly before President Trump began his second term, Chief Justice John Roberts issued a not-too-subtle warning: the incoming administration might ignore Supreme Court rulings. Roberts was right that the high court’s ruling would be discarded, but Trump is not to blame. Indeed, the Trump Administration stated in absolute terms that it would follow every facet of Supreme Court decisions. For better or worse, Trump has tied his fate to the Nine. 

Rather, we are witnessing a remarkable shift in the lower courts. Federal judges on the East and West Coasts–not in flyover country–are blocking nearly every action taken by the Trump Administration. In some cases, judges are issuing emergency orders within hours, without even reading all the briefs. And through procedural rules, they can insulate their rulings from any appeal for up to a month. Due to forum shopping, federal courts of appeals within driving distance of an ocean invariably affirm these orders. 

The Trump Administration has only one possible recourse: the United States Supreme Court. Much has been written about the so-called “shadow” or emergency docket. But the simple truth is that unless the Supreme Court intervenes at an early point–what Justice Brett Kavanaugh calls the “interim before the interim”–inferior court judges will basically have the final say over executive power. And to be clear, it is the Constitution that calls them “inferior” judges. Inferior courts sit below the United States Supreme Court. The Supreme Court has declared that “[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Yet, in the view of a majority of the Supreme Court, anarchy by the inferior courts is reigning supreme. Consider three recent lines of cases.

The first line of cases involves the executive branch’s power to deport. Department of Homeland Security v. D.V.D. considered whether the government could deport certain aliens to South Sudan, which is known as a “third country.” Right on cue, a federal judge in Boston blocked the removals. As a result, federal immigration officials were forced to hold the aliens at a military base in the African nation of Djoubti, because the judge ordered them to stay put. On June 23, the Supreme Court reversed the lower court’s ruling, allowing the deportations to proceed. Justices Sotomayor, Kagan, and Jackson dissented. Yet, remarkably, the lower court didn’t get the memo. Mere hours after the Supreme Court ruled, the Boston judge declared that another one of his earlier rulings “remain[ed] in full force and effect” notwithstanding the Supreme Court’s order. Indeed, the judge cited Justice Sotomayor’s dissent as authority. 

The Department of Justice filed an unusual “motion for clarification” with the Supreme Court. The filing stated that the Boston judge’s ruling was “a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the Executive’s lawful efforts to effectuate third-country removals.” On July 3, the Supreme Court reversed this lower court, again. Most judges can go their entire career without a single ruling reaching the Supreme Court. However, this judge was reversed by the Supreme Court twice within a span of two weeks. The Supreme Court recognized that the lower court may have “failed to give effect to an order of this Court.” But the Court assumed that the lower court would “now conform its order to our previous” ruling. Even Justice Kagan felt compelled to speak up. She did “not see how a district court can compel compliance with an order that this Court has stayed.” It shouldn’t take two Supreme Court orders for a Boston judge to figure out how to proceed. But this case is not an anomaly.

The second line of cases involves the President’s power of removal. Since taking office, President Trump has fired a number of officers in the executive branch. In some cases, the law stipulates that the President can only dismiss them for good cause. Trump has argued that these restrictions unduly infringe on his executive removal power. For more than a decade, the Roberts Court has issued a series of rulings that support Trump’s claim. Yet, in case after case, lower court judges blocked Trump from firing these officers, and in some cases, ordered reinstatement. In February, the Supreme Court managed to duck the removal power issue in Bessent v. Dellinger. But in May, the Supreme Court decided Trump v. Wilcox. This case all-but-signaled that Trump has the power to fire members of the “independent” National Labor Relations Board and Merit Systems Protection Board. The short order stated that these members “exercise considerable executive power,” implying that Trump should have the power to fire them. Wilcox was paradigm-shattering and is poised to transform the balance of power between Congress and the President. 

Yet, in Trump v. Boyle, a judge in Maryland ruled that Trump could not remove members of the Consumer Product Safety Commission. The judge buried Wilcox in a footnote. Once again, the Solicitor General filed an urgent appeal. DOJ claimed that the Maryland judge “adds a new twist by challenging this Court’s authority.” Three weeks later, the Supreme Court would agree. On July 23, the Supreme Court explained that it meant what it said in Wilcox. The Supreme Court was incredulous that the lower court could distinguish Wilcox. The Court’s short order stated that Boyle “does not otherwise differ from Wilcox in any pertinent respect.” Justice Kagan dissented, but she did not defend the Maryland judge’s ruling. 

The third line of cases involves DOGE. The Trump Administration has sought to cut a wide range of government spending. Under longstanding law, litigation over government spending is heard in the specialized Court of Federal Claims. It is not possible to waltz into a local federal district court. Yet, blue states had other ideas. In Department of Education v. California, the state of California argued that the Trump administration could not cancel certain funding items for education. A federal judge in Boston agreed. You might ask why California sued in Boston, rather than in California. As liberal as the San Francisco-based Ninth Circuit Court of Appeals is, the Boston-based First Circuit is even further to the left. In April, the Supreme Court ruled that these cases should be heard in the Court of Federal Claims. Indeed, this ruling seems to have reversed a prior Supreme Court ruling, which found that a federal judge in the District of Columbia could consider a cut to USAID funding.

The California ruling was straightforward enough. The first question any judge should consider is whether a case belongs in his court. Not so. Once again, a judge in Boston ordered the government to pay out certain DEI grants. That judge ruled that the California decision was “not final,” was “without full precedential force,” and “agree[d] with the Supreme Court dissenters.” And once again, on July 24, the Department of Justice filed another emergency appeal. The Solicitor General rejected a “lower-court free-for-all where individual district judges feel free to elevate their own policy judgments over those of the Executive Branch, and their own legal judgments over those of this Court.” 

About a month later, on August 21, the Supreme Court mostly reversed the Boston court in NIH v. APHA. The Court, by a 5-4 vote, ruled that under California, the Boston judge lacked the power to consider this case. Justice Amy Coney Barrett, the deciding vote, agreed that this dispute about the funding cut belonged in the Court of Federal Claims. None of this should have come as a surprise. California signaled loud and clear that these cases do not belong in a Boston courthouse. 

Justice Gorsuch wrote a striking concurrence, which Justice Kavanaugh joined. Gorsuch squarely rejected the lower court’s attempt to duck California: “when this Court issues a decision, it constitutes a precedent that commands respect in lower courts.” Gorsuch added that “This Court’s precedents, however, cannot be so easily circumvented.” No more California dreamin’.

In each of these three lines of cases, perhaps the lower courts in good faith thought the Supreme Court’s ruling did not dictate a particular outcome. After all, in all three cases, dissenting members of the Supreme Court would have upheld the lower court rulings. Maybe these judges, after careful reasoning, concluded that the Supreme Court’s orders were narrow, or interim, or not meant to settle all controversies. Some of these issues are fairly complex, and the Supreme Court’s short orders do not spell out much reasoning. Or perhaps there is another rationale to explain what is happening.

I’m skeptical. In these three lines of cases, the dissenters do not always defend the lower court on the merits, but instead focus on the fact that the Supreme Court’s intervention is not justified. Moreover, as Justice Gorsuch pointed out, these rulings are not outliers. The Boston judge’s “failure to abide by California [was not] a one-off.” The government pointed out in its emergency brief that “District-court defiance of this Court's decision in California has grown to epidemic proportions, as courts have issued nearly two dozen decisions asserting jurisdiction over claims challenging grant or funding terminations since California.” As the saying goes, fool me once, shame on you; fool me twice, shame on me; fool me three times, shame on all of us.

What can explain these lower court decisions? During the first Trump Administration, federal judges found that Trump no longer deserved the so-called “presumption of regularity.” Under this presumption, courts will generally defer to the actions taken by a particular president as if they were regular actions taken by any president. But not for Trump. His tweets were too mean. Even if a specific action may be upheld if taken by another President, Trump, in particular, should not be afforded that deference. As soon as Trump began his second term, federal judges resumed their skepticism of everything Trump does. But what’s different this time is that the Boston Brahman of the judiciary, determined to save the rule of law, are pushing back against the Supreme Court itself. Again, perhaps if there were only one or two of these rulings, they could be chalked up to good faith disagreements. But the breadth and scope of these rulings are unmistakable. 

Perhaps we can make an addendum to this concept of the presumption of regularity. No President can actually lose this presumption. This deference is afforded to the President by virtue of his victory in the election; nothing his administration says or does can affect that presumption. But federal judges lack any such accountability. I think the Supreme Court is telling lower federal judges–especially in Boston–that they have lost the presumption of judicial regularity. And so long as they issue rulings that do not faithfully follow precedent, the Supreme Court will feel compelled to intervene on the emergency docket. As Justice Gorsuch explained, “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” 

We should be grateful that the Supreme Court stopped this failed lower court revolt. Chief Justice Roberts seems partially committed to this cause. He joined the majority in D.V.D. and Boyle, but not in NIH. I think the Chief Justice should worry far more about a revolt from the lower courts than resistance from Trump.‍

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is a contributing editor to Civitas Outlook.