The Supreme Court has been away from Washington, D.C. for two months, since its final regular decision day, but as its emergency docket has continued to fill up during the summer, the justices are showing growing frustration over lower courts’ orders.
As lower courts continue to issue orders blocking various actions by the Trump administration, more of those cases have come to the Supreme Court’s emergency docket and led to interim action from the justices. While the high court has issued orders that have told lower courts how they should handle similar cases while litigation proceeds, the justices have had to issue several similar orders in the face of lower court intransigence, leading some justices to warn the lower courts not to defy them.
Gorsuch warns lower courts they’re ‘never free to defy’ Supreme Court
Justice Neil Gorsuch issued the latest warning to lower courts in an order on the Supreme Court’s emergency docket last week, which allowed the Trump administration to terminate $783 million in DEI-related grants from the National Institutes of Health.
“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote in a concurrence taking aim at lower court judges.
He argued that the district court in question disregarded a previous order that the Supreme Court had issued via the emergency docket in April that had allowed the Trump administration to cut $65 million in teacher training grants, which was also related to Trump’s anti-DEI efforts. Gorsuch then pointed out that two other times in recent weeks, lower courts effectively defied orders from the justices in similar but separate cases.
“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,” Gorsuch wrote.
“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,” he added.
Carrie Severino, president of the conservative advocacy group Judicial Crisis Network, told the Washington Examiner that the order shows how lower court actions have forced the Supreme Court to push back via its emergency docket.
“If it were a one-off thing, maybe he wouldn’t have written it, but this has become a pattern of behavior. Reoccurring defiance by lower court judges is why you’re seeing the need for the court to respond to it,” Severino said.
“As a result, we’re seeing that the court is having to address it with emergency docket action and take the unusual step of writing to explain to a lower court judge that they need to follow the court’s opinions,” she added. “But apparently, the lower court judges are pretty intransigent.”
While the Supreme Court has typically deferred to lower courts to properly interpret the high court’s order and opinions, including on the emergency docket, recent actions by some district judges have eroded the trust the justices have long held.
“Some lower court judges have shown themselves to be unable to take a hint as to what the correct thing is. And so the justices are taking the extra step to be explicit and clear about where they’re going. I think the court is already taking further action just by spelling it out,” Severino said. “They can’t assume that these judges can read between the lines or can take a hint.”
Previous emergency orders have chastised lower courts
Prior to last week’s order in the DEI funding case, the Supreme Court twice had to clarify or reissue rulings in cases where district courts disregarded what the justices had already said about the underlying issues in similar cases.
After the Supreme Court, in a June 23 order, allowed the Trump administration to deport illegal immigrants to countries other than their homelands, a federal judge in Massachusetts still attempted to forbid the administration from deporting a group of illegal immigrants to South Sudan based on a technicality.
The Justice Department ripped the judge’s ruling as a “lawless act of defiance” and asked the Supreme Court for a clarifying order. Weeks later, the Supreme Court again ruled in favor of the DOJ, finding the lower court judge’s order “cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Justice Elena Kagan, a liberal justice who had dissented from the high court’s original stay order, concurred with the clarifying order, arguing that the lower court judge was attempting to enforce an order that the Supreme Court had already stayed.
“I continue to believe that this Court should not have stayed the District Court’s April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard,” Kagan wrote. “But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed.”
The notable concurrence from Kagan showed that the frustration with lower courts extends beyond the justices in the majority.
“Even the justices that don’t agree with the underlying decision are getting fed up with the fact that they can’t count on district courts to actually follow that decision,” Severino said.
The high court also had to repeat an order for a similar case when the Trump administration asked it to allow it to fire three Democrat-appointed Consumer Product Safety Commission members. The request came months after the Supreme Court had already allowed the Trump administration to fire another group of independent agency heads via the emergency docket in May.
The majority opinion in the July order pointed to that previous ruling from May, telling lower courts they should look at emergency docket orders as guidance in the interim.
“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 majority ruling said, citing its order from May that said Trump is allowed to fire independent agency heads while legal challenges to their terminations play out.
Ruling Injunction decision
So far, the Supreme Court’s most significant action to curb lower court overreach came in late June with the justices’ ruling in Trump v. CASA, which significantly restricted district courts’ ability to issue universal injunctions.
The high court’s ruling came after lower court judges, often appointed by Democratic presidents, issued dozens of universal injunctions blocking Trump administration orders and actions nationwide. District court judges have fired off injunctions at a blistering pace since President Donald Trump returned to office in January.
Universal injunctions were not used by district courts until the middle of the 20th century, but their use exploded during recent presidents. The Supreme Court reviewed the legality of the injunctions this year after the DOJ appealed a trio of injunctions against Trump’s birthright citizenship executive order.
The high court’s 6-3 ruling on June 27 barred lower courts from issuing universal injunctions in the vast majority of cases, finding it is not within the lower courts’ power to stop most policies from going into effect during lawsuits.
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“Federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” Justice Amy Coney Barrett wrote in the majority opinion. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
While the ruling in Trump v. CASA curbed a popular method judges used to halt Trump administration policies, it has not stopped judges from finding other ways to block the president’s agenda, meaning the emergency docket has remained active despite the Supreme Court’s summer recess.