America’s lower judiciary is out of control — and Supreme Court Justice Neil Gorsuch is putting it on notice.
In a Thursday order, the nation’s highest court granted (in part) a request by the Trump administration to temporarily pause a lower court blockade on the National Institutes of Health’s bid to terminate DEI-related grants totaling nearly $800 million. The ruling was 5-4, with Chief Justice John Roberts and the court’s Democrat appointees saying they would have denied the administration’s application in full.
The granting of stay was one of several instances in which the Supreme Court has been asked to weigh in on injunctions issued by (primarily) left-wing district judges. Such orders have often come at the behest of Democrat activists seeking to sabotage the Trump administration via a judicial coup.
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In addition to signing onto the majority’s Thursday decision, Gorsuch penned a concurring opinion in the case in which he ripped into the lower judiciary’s out-of-control behavior. While noting that “[l]ower court judges may sometimes disagree with this Court’s decisions … they are never free to defy them.”
Citing a related case recently before the Supreme Court (Department of Ed. v. California), the Trump appointee highlighted how the high court “granted a stay [in that case] because it found the government likely to prevail in showing that the district court lacked jurisdiction to order the government to pay grant obligations.” He wrote, “California explained that ‘suits based on “any express or implied contract with the United States”’ do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act.”
“Rather than follow that direction, the district court in this case permitted a suit involving materially identical grants to proceed to final judgment under the APA,” Gorsuch wrote. “As support for its course, the district court invoked the ‘persuasive authority’ of ‘the dissent[s] in California‘ and an earlier court of appeals decision California repudiated … That was error.”
Gorsuch went on to underscore that “the promise of our legal system that like cases are treated alike means that a lower court ought not invoke the ‘persuasive authority’ of a dissent or a repudiated court of appeals decision to reach a different conclusion on an equivalent record.” More to the point, however, he noted that the district court’s apparent rebuke of the precedent very recently established by SCOTUS in the California case is not an isolated incident among the lower courts.
“If the district court’s failure to abide by California were a one-off, perhaps it would not be worth writing to address it. But two months ago another district court tried to ‘compel compliance’ with a different ‘order that this Court ha[d] stayed,'” Gorsuch wrote. “Still another district court recently diverged from one of this Court’s decisions even though the case at hand did not differ ‘in any pertinent respect’ from the one this Court had decided … So this is now the third time in a matter of weeks this Court has had to intercede in a case ‘squarely controlled’ by one of its precedents.”
The Trump appointee concluded his concurrence by laying down a marker in the sand that, regardless of their personal opinions, lower court judges are obligated to abide by the Supreme Court’s guidance and the existing constitutional framework.
“All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect ‘the hierarchy of the federal court system created by the Constitution and Congress,'” Gorsuch wrote.
Gorsuch was joined in his opinion by Associate Justice Brett Kavanaugh, who concurred in part and dissented in part, according to Thursday’s order.