Federal Judges Are Worried About the Supreme Court

We’re in danger. The partisan Supreme Court is our only real check on Donald Trump, and it has completely abdicated its duty. 

Forget about prominent Republicans like George W. Bush or Mitch McConnell. Their virtual silence on the president’s repeated violation of norms and his undeviated pattern of executive overreach speaks volumes that they will do nothing.

Forget about the Democrats. They can’t decide whether to embrace or marginalize Zohran Mamdani.

Forget about Congress. Conservative Republican senators, led by Barry Goldwater, may have been a band of brothers forcing Richard Nixon out of office in 1974. But it’s no coincidence that Profiles in Courage is such a thin book. In today’s spiteful political climate, brave Republicans like Goldwater are gone, and those in Congress are too cowardly to oppose presidential overreach.

And forget about the MAGA-dominated Supreme Court, of course. Repeatedly, district and appeals court judges have shown courage, blocking Trump’s dangerous and unprecedented policies, only for the Supreme Court to overturn them with a summary order on its emergency shadow docket. Since his return to office, Trump has won nearly all the Supreme Court’s rulings on the shadow docket.

The decisions made on the shadow docket have real-world consequences. For now, Trump can withhold certain congressionally approved funds, discharge transgender service members from the military, send undocumented immigrants to dangerous locations like South Sudan, use race as a factor in immigration stops (but not college admissions), fire thousands of government employees, and all of this is enabled because of emergency orders.

But the big development occurred last week with the astonishing New York Times survey of dozens of federal judges, many of whom were sharply critical of the Supreme Court’s handling of emergency applications, especially in Trump-related cases. You heard it, not from liberal pundits or liberal professors, but from federal judges—some even Trump-appointed—who believe the Supreme Court has gone too far. These sitting judges with life tenure warn of a “judicial crisis,” caused by a spate of opaque orders without opinions in cases related to the Trump administration. The orders have left them bewildered about how to proceed.

Sixty-five judges responded to a Times questionnaire sent to hundreds of federal judges nationwide. Of those, 47 said the Supreme Court had been mishandling its shadow docket since Trump returned to office. The judges were nominated by both Democratic (37) and Republican (28) presidents.

Forty-two judges went as far as to say that the Supreme Court’s emergency orders caused “some” or “major” harm to the public’s perception of the judiciary. Among those who responded, nearly half of the judges nominated by Republican presidents believed the orders had hurt public respect for the judiciary.

The judges delivered a strong rebuke as they shared their concerns about threats to the courts’ legitimacy with the Times. Quoting the Times story, the judges described the Supreme Court’s shadow docket orders as “mystical,” “overly blunt,” “incredibly demoralizing and troubling,” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts are in a “judicial crisis.”

The survey apparently galled the Supreme Court’s right-wing defenders, who have rubbished the survey’s methodology and denigrated the participating judges as engaging in unethical—if not impeachable—misconduct. 

For its part, the Supreme Court’s liberal wing has deemed the majority’s pro-Trump rulings to be “misguided,” “dangerous,” and an “existential threat to the rule of law,” as well as “overly blunt,” “incredibly demoralizing and troubling,” and “a slap in the face to the district courts.” Chief Justice John Roberts had previously chastised the liberal wing of the court in July 2023: “It has become a disturbing feature of some recent opinions to criticize the decision with which they disagree as going beyond the proper role of the judiciary.” Oh, please!

Federal district court judges must be commended for their independence in an age of craven politicians. There have been roughly 300 cases aimed at stopping executive overreach, and the litigation has slowed Trump down. The main pattern is that lower federal courts often rule against the administration, with many judges being appointees whom Trump chose, and the Supreme Court frequently reverses these decisions quickly on its shadow docket without giving a full opinion. So far, there have been only three major majority opinions regarding the Trump administration’s requests for emergency relief—along with 10 rulings that did not explain at all (the rest have involved brief explanations that the Court itself calls “orders,” rather than “opinions of the Court”).

Federal district judges play essential roles in our society. Their positions are not mere stepping stones to appeals courts or the Supremes. Most stay their entire career or leave for something else entirely. District Judge George Mitchell, the Senate Majority Leader, was tapped for the U.S. Senate when his fellow Mainer, Senator Edmund Muskie, became Jimmy Carter’s second Secretary of State. But some MAGA justices have sternly rebuked lower court judges in language more appropriate for a scolding schoolmarm. In August, Justices Neil Gorsuch and Brett Kavanaugh reprimanded seasoned Judge William G. Young of the U.S. District Court for the District of Massachusetts. Young, an 85-year-old appointee of President Ronald Reagan and an Army veteran who has served for over 40 years on the bench, was criticized for what they saw as the mortal sin of applying an emergency ruling in one spending case to another. “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” they wrote.

That view resonated with one of their retired colleagues, Jeremy Fogel, a federal judge for 20 years. Judge Young, he said, “has been at it for so long. He’s done the toughest cases, and he’s done them well. For a guy like that to get bench-slapped for not reading the tea leaves properly? That’s just not fair.”

And one district judge found himself vulnerable to Trumpworld retaliation. For stopping Trump from using the Alien Enemies Act of 1798 to deport alleged gang members, he was criticized as a “troublemaker” and an “agitator.”

When Trump said he wanted the jurist impeached, and a bill of impeachment was introduced in Congress against the judge, this piece of Trumpery was too much even for Chief Justice Roberts. Without daring to mention Trump by name, Roberts thundered, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” 

At a September hearing, Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit said his court was “out here flailing” as it tried to apply vague emergency rulings from the Supreme Court that left judges “in limbo.” Ruling on a different case, Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts noted that the emergency orders “have not been models of clarity.”

It is “of surpassing historic significance” that so many sitting judges have chosen to weigh in publicly on the Supreme Court, said J. Michael Luttig, a conservative former federal judge who served in the administration of George H.W. Bush.

Trump’s allies argue without cogency that lower court judges overstepped their authority in blocking presidential actions, interfering with what they call a popular mandate. One judge, a Trump appointee, shared that view and praised the Supreme Court for “flushing out anti-democratic rulings” with its emergency orders.

Most judges’ main complaint was not what the Supreme Court decided but how it did so. They said the Court was leaving them without standards or guidelines by issuing shadow docket orders in just a few sentences, with little or no reasoning.

Despite the justices’ brevity and lack of reasoning, the Supreme Court has become more persistent in asserting that its emergency orders serve as precedents for lower courts. In an unsigned emergency order from July, the Supreme Court noted that although emergency orders were “not conclusive,” district court judges should still consider them in “like cases,” which is the exact opposite of what Justice Samuel Alito publicly stated as recently as September 2021.

Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, a highly regarded jurist and Reagan appointee, was less certain. Wilkinson mentioned that the Supreme Court was prim at the mercy of factors beyond its control: a high volume of urgent challenges to a presidency that “would put its foot on the pedal, because it has an agenda, and it’s sensitive to the fact that electoral mandates are perishable.”

Supreme Court scholar and law professor Stephen Vladeck makes a strong point, which is how much the defenses of the Court’s recent behavior in Trump-related cases rely on some combination of these kinds of attacks on the critics and the knocking down of straw men (like in Justice Amy Coney Barrett’s appearance the other day on Fox News Sunday). He indicates that those who don’t see anything concerning in the Court’s behavior “would do well to actually respond to the criticisms rather than attacking the critics or caricaturing their concerns.” 

Justice Barrett, specifically, when asked to respond to criticisms of the Court’s handling of Trump-related emergency applications, gave the misleading answer that “If we wrote a long opinion, it might give the impression that we have finally resolved the issue, and in none of these cases have we finally resolved the issue.”

Vladeck argues that the Court can easily craft an opinion that doesn’t predetermine any future outcome if the case returns on the merits. It can clearly state that it isn’t definitively ruling on the merits—something it often emphasizes in non-Trump cases. Lawyers refer to this as a disclaimer or a caveat.

Maybe in the land of Oz, one can justify the Court granting emergency relief more frequently than ever, especially in cases with greater real-world and structural impacts. However, it is hardly justifiable for the Court to break the traditional balance of equities to serve partisan interests, as they did in December 2000 when their 5-4 decision to halt the Florida recount handed the election to George W. Bush. Curiously, does the Court go that way only in cases where Trump is a party and no others? 

The recent fast-track shadow rulings by the Supreme Court have completely undermined its credibility. Does a self-styled institutionalist like Chief Justice Roberts care? The American people do.