The Supreme Court 'kneecapped' the lower federal courts. Or did it?

I was a United States District Court judge for 17 years. In all my time on the bench, I never faced what federal judges in Massachusetts, and across the country, have endured since President Trump assumed office for the second time.

They have received emergency application after emergency application, each claiming that unless a judge intervenes to stop an executive order while the case is being litigated, the plaintiffs they will be “irreparably harmed.”

To meet the challenge, judges have held hearings, read briefs and carved out time from their normally busy caseloads. Because of the importance of these cases — and the fact that Trump is assuming extraordinary executive powers (that no other president ever tried to assume), the high stakes to the parties, and the likelihood of appeal no matter the outcome — judges have also written lengthy opinions.

Consider these cases, just in Massachusetts.

While it is common to grouse about the slow pace of litigation, not so here. District court judges have met the emergency, overwhelmingly deciding that Trump’s executive orders violated the law, producing substantial opinions in record time, and mincing no words about the administration’s overreach.

In ordering NIH to restore hundreds of research grants that were cancelled due to being LGBTQ+ or DEI-related, Judge William G. Young, an 84-year-old Reagan appointee, said: “I’ve sat on this bench now for 40 years. I’ve never seen government racial discrimination like this,” before adding “Have we no shame?”

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In case after case, federal judges have imposed national injunctions not only because no other remedy made sense, but also because of precedent. Nationwide injunctions had been entered against President Biden in cases about the student loans,  COVID vaccine mandates, loan forgiveness for certain farmers and ranchers, a pause on new oil and gas leases on public lands and more.

Administrations, Democratic and Republican, have complained about the use of nationwide injunctions for years. Still, when the justice department during the Biden administration twice asked the Supreme Court to weigh in on the propriety of nationwide injunctions, it declined.

Instead, the case this Court selected to consider the issue was Casa v. Trump, which challenged the constitutionality of Trump’s ban on birthright citizenship. It is hard to imagine a worse case, where an attack on nationwide injunctions makes less sense. The plaintiffs were pregnant women (whose children would be citizens in some states but not others), immigrant rights organizations with thousands of members, 22 states, the District of Columbia and the city of San Francisco. The government suffered no irreparable harm; stopping the order only meant that the U.S. would continue to do what had done for over 100 years.

Nor was there really any question that the order was blatantly — blatantly — unconstitutional.

And yet: Writing for the conservative majority, Justice Amy Coney Barrett explained the Supreme Court’s decision to bar nationwide injunctions that affect people who are not explicit parties to a case. And then the majority went out of its way, as Dahlia Lithwick of Slate described it, to “kneecap” district court judges.

In a blistering dissent, Justice Kentanji Brown Jackson decried the Court’s “complicity in the creation of a culture of disdain for lower courts, their rulings and the law.” And in her dissent from the ruling allowing migrants to be deported to countries they are not from — without even a modicum of due process – Justice Sonia Sotomayor wrote: While “[o]ther litigants must follow the rules … the administration has the Supreme Court on speed dial.”

Not to worry, Justice Brett Kavanaugh’s concurrence assures us, the Supreme Court will step into the breach. Leave it to the nine justices to make “interim” decisions in cases of national importance, not district courts. After all, he says, the Supreme Court has the “procedural tools” to do the job.

While the Supreme Court has always had to render an occasional emergency ruling, no Court has ever utilized these orders more than this one.

Seriously? This is the Court of the “shadow docket,” the name given to cases that the Court deals with on an emergency basis, issuing rulings with monumental consequences, often unsigned, without oral argument from the parties, full briefing, or indeed, any explanation whatsoever. While the Supreme Court has always had to render an occasional emergency ruling, no Court has ever utilized these orders more than this one.

Take the Supreme Court’s unexplained one paragraph order overturning Judge Murphy’s 48-page order which had temporarily stopped the government from deporting immigrants to countries where they had no previous ties, without due process. The Court’s order made absolutely no sense – it seemed in direct contradiction to an emergency order (also unsigned and unexplained) issued in mid-May that required the administration to provide due process to Venezuelan nationals before deportation under the Alien Enemies Act.

The message is clear.  This Supreme Court is pursuing a regime of “Supreme Court” supremacy.

Still, where Congress is passive, the courts — courts at all levels, including the district court on which I served — continue to be the only bulwark against an overreaching executive, notwithstanding Kavanaugh’s hubris that only the Supreme Court can save us. The fact is that the Supreme Court left the door to national relief via district courts open a crack: national class action suits, or cases that challenge federal regulations under the Administrative Procedure Act, and perhaps, cases brought by States.

Will my former colleagues on the federal judiciary bench walk through that door? Or will they back down from confronting Trump’s executive orders, for fear of reversal by a Supreme Court that seems hell bent on giving an autocrat his way?

We’re starting to get some answers.

Last week, just days after the opinion in Casa vs. Trump was issued, Judge Randolph Moss, in a 128-page decision, invalidated a Trump executive order on behalf of a national class of migrants who were denied the ability to apply for asylum at the Southern border.

In Rhode Island, in a case brought by 19 states and the District of Columbia, Judge Melissa R. DuBose issued a 58-page decision ordering the Trump administration to stop planned layoffs at the Department of Health and Human Services.

Judge William G. Young, my former colleague, in a 103-page order that supplemented his oral decision, acknowledged the Casa decision, but determined that the wholesale disruption of grants at NIH and HHS, and the grant-making process violated the Administrative Procedure Act.

Then on July 10, Judge Joseph Laplante in Concord, New Hampshire, certified a national class action and barred Trump's birthright citizenship order.

That’s the answer. These judges understand their singular role in this democracy — especially now — is to stand up for the rule of law even when other institutions are not.

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