


President Trump has been berated by critics who fear he will defy the courts, but in recent weeks, federal judges have tested the boundaries of the law, with a series of rulings that seem to challenge Supreme Court pronouncements.
U.S. Solicitor General D. John Sauer said judges’ rebellion has reached “epidemic proportions” and must be dealt with.
The latest flare-up came in late June, when Mr. Sauer asked the justices to rein in a district judge in Massachusetts who ordered the government to restart grants at the National Institutes of Health. That decision conflicts directly with a Supreme Court ruling in April that found it made sense to let Mr. Trump pause spending in a similar case while the legal battle develops, the solicitor general said.
Mr. Sauer said that same principle applies to the NIH fight. But U.S. District Judge William Young, a Reagan appointee, ruled that the Trump administration must pay out the money while the case proceeds in lower courts.
A day before Mr. Sauer’s filing, the justices had overruled another federal judge who had blocked Mr. Trump’s attempt to fire three members of the Consumer Product Safety Commission. The justices said they thought they had settled the issue in an earlier case involving firings at the National Labor Relations Board.
In a stern ruling the justices told lower courts not to be obtuse.
“Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases,” the high court said in an unsigned order.
Earlier in July, the justices scolded U.S. District Judge Brian Murphy in Massachusetts, telling the Biden appointee to “conform” his rulings to their ruling from several weeks prior, when they told him to quit blocking Mr. Trump’s effort to deport illegal immigrants to so-called third countries.
The court pointed out that the only legal justification Judge Murphy had cited in his opinion was from the dissent — in other words, the losing side — of the high court’s ruling in June.
Josh Blackman, a professor at South Texas College of Law who has been tracking the cases, said the pattern suggests a deliberate obstinance on the part of some judges.
“I think lower court judges are reading Supreme Court opinions very narrowly, almost in an act of resistance,” Mr. Blackman told The Washington Times. “It is very common for judges to call Trump out for defiance, but these courts need to look at their own actions.”
Mr. Sauer sounded a similar note in his request to the justices to get involved in the NIH fight.
“Our judicial system rests on vertical stare decisis, not 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,” the solicitor general said.
The cases have surged to the high court on what’s known as the emergency, or “shadow,” docket. The justices don’t have full briefings or oral arguments, and issue abbreviated decisions usually on procedural matters, though they do have to make some preliminary findings on the underlying issues of a case.
Adam Feldman, a Supreme Court scholar and founder of Empirical SCOTUS, said a “disconnect” has emerged between the lower courts and the GOP-appointed justices, who seem to be using the emergency docket to try to signal where they think cases should go — even though they haven’t issued precedent-setting opinions.
“There is most likely cross-directional frustration between generally moderate to liberal lower court judges who see their role somewhat upended by the Supreme Court, and the justices on the other side who feel that their decisions should be paramount and that lower court judges’ jobs are to abide by the principles and decisions set forth by the justices,” Mr. Feldman said.
Carolyn Shapiro, who runs the Chicago-Kent College of Law’s Institute on the Supreme Court, said she didn’t see resistance on the part of judges but rather struggles to make sense of all the emergency docket action. She said the judges were not bound to follow the emergency order and noted the responsibility for clarity relies on the justices.
“It’s really a dramatic shift in their role and it’s coming without explanation. I think they should be much more restrained,” Ms. Shapiro said.
Justice Elena Kagan, in a speech to the Ninth Circuit Judicial Conference last month, agreed.
“What we started doing when we started doing these things was just issuing orders,” said the Obama appointee, a frequent dissenter in the Trump emergency docket rulings. “But I think that that’s not the right way to approach it, because the orders themselves don’t tell anybody anything about why we’ve done what we’ve done.”
Justice Kagan chided the court for a ruling earlier this month allowing Mr. Trump to carry out major cuts and layoffs at the Education Department.
The justices didn’t actually decide the legal issues involved, but said the district judge was wrong to step in when he did.
Justice Kagan said the court should be reticent about doing too much on the emergency docket, and when it does it should give more explanation about what it’s doing.
“We should hold ourselves on both sides to a standard of explaining why we’re doing what we’re doing,” she said.
Justice Kagan said the heart of the emergency docket debate goes to presidential powers and whether the right of a president to carry out his agenda takes precedence over the loss of grant money, or the danger of potentially wrongful deportations, suffered by those suing him.
Indeed, the big cases in which the high court has sided with Mr. Trump include firing powers, his ability to reshape the federal bureaucracy and his leeway in carrying out immigration policy.
Then there’s the birthright citizenship debate: The high court has yet to rule on the legal issues involved but did issue a decision in June telling lower courts to be more careful about how broadly they draw up “universal” injunctions.
Despite that ruling, three lower courts have now come back with new nationwide rulings against the president’s executive order.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.