Late last week NBC ran a “news” story featuring a dozen disgruntled federal judges whose rulings against various Trump administration policies have been stayed or overturned by the Supreme Court. These lower court judges, none of whom had the courage to allow NBC to name them in the article, bewailed the failure of SCOTUS to provide sufficient justification for ruling against them. It’s blindingly obvious, however, that the real issue they are whining about is the Court’s refusal to countenance their usurpation of the President’s Article II powers and frustrate implementation of his agenda.
The real problem here is the failure of the “judicial insurrection.”
Upon assuming office, the President signed a number of executive orders involving a variety of issues. Many of these EOs were challenged by lawsuits filed in district courts presided over by activist judges. Inevitably, these judges issued “universal injunctions” that halted implementation of the EOs nationwide. The administration filed emergency appeals with SCOTUS and they were entered on the Court’s “shadow docket.” According to the NBC story, “The Supreme Court has granted Trump administration requests to block lower court rulings in more than 70 percent of cases brought by the administration that were decided via the shadow docket.”
This shouldn’t have surprised anyone. Universal injunctions have long been criticized by legal scholars and members of the Supreme Court itself. Justice Elena Kagan, hardly a far right ideologue, has been particularly outspoken on the subject. During a seminar at Northwestern University’s School of Law, she succinctly explained her view on such injunctions: “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.” Finally, on June 27th of this year, the Court handed down a ruling in Trump v. CASA that supported Kagan’s comment:
Because universal injunctions likely exceed the equitable authority that Congress has granted to federal courts, the court grants the government’s applications for a partial stay of the injunctions entered below regarding the implementation and enforcement of the Trump administration’s Jan. 20 executive order ending birthright citizenship, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.
Despite this clear language indicating that universal injunctions “exceed the equitable authority Congress has granted to federal courts,” the ruling contained a potential loophole that unscrupulous district judges could exploit to evade the obvious intent of the Court. Justice Samuel Alito warned in his concurring opinion that it was still possible to achieve the goals of a universal injunction pursuant to a class action lawsuit. The certification of a “nationwide class” is a notoriously long and laborious process. Moreover, if a partisan judge is willing to abuse universal injunctions, he is unlikely to conduct a robust class certification analysis.
If district judges fail to conduct such analyses, Alito predicted, “[T]he universal injunction will return from the grave under the guise of ‘nationwide class relief,’ and today’s decision will be of little more than minor academic interest.” Sure enough, within a week of the CASA ruling a class was certified by Obama-appointed Judge Randolph D. Moss in the U.S. District Court for the District of Columbia. Lawfare’s “Trump Litigation Tracker,” however, shows that only five class certifications have been approved. Consequently, the frustrated judges and their far left allies are attacking SCOTUS. Democracy Docket’s Jacob Knudson is all too typical:
Seeking to swiftly enact his aggressive and legally dubious policies, Trump has repeatedly asked the Supreme Court to intervene after receiving an adverse ruling from a lower court. In the seven months since he returned to the White House, Trump has filed over 20 emergency applications to the court’s shadow docket — a record number in such a short amount of time. In response to his requests, the court’s Republican-appointed majority has sided with the government nearly every time.
The dishonesty on display here is amazing, even for a publication founded by notorious pettifogger Marc Elias. The large number of emergency appeals filed by the Trump administration is obviously driven by the unprecedented number of universal injunctions issued by partisan judges in order to hobble the President’s agenda. And the heavy-handed effort to make the shadow docket sound somehow sinister is, quite frankly, ridiculous. It has existed since the creation of the Court, serving as a mechanism to expedite emergency cases that must be decided immediately — including 11th hour petitions for stays of execution.
The real problem here is the failure of the “judicial insurrection.” The nation’s federal courts are filled with Obama and Biden appointees who think of themselves as the last line of defense in a Manichean struggle between good and evil — and in their minds President Trump and his supporters represent the forces of darkness. They are, in other words, angered by their own inability to thwart the will of the voters as carried out by Trump. Moreover, they know the Supreme Court is likely to become even less patient with their antics in the future because Trump may well appoint the next two justices. Their creepy little coup is collapsing.
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