War of the judges: When will the Supreme Court blink?

A friend wrote me recently responding to an article I had done arguing that the lower federal courts are dutifully applying the law to curb the Trump administration’s executive overreach. She darted, “But he owns the Supreme Court.”

The Supreme Court seems terrified to overturn Trump’s lawless executive actions, as it courageously did when President Harry Truman tried to seize the steel mills in 1952. The court appears to fear a constitutional crisis if Trump chooses to disregard unfavorable rulings.

Between May and July, federal district courts have ruled against the administration roughly 94.3 percent of the time. The Supreme Court, however, has flipped that outcome, siding with the administration in about 93.7 percent of its cases, mostly on its “shadow” or emergency docket.

In areas such as immigration, National Institutes of Health grants, education and banning transgender people from the military, trial judges across the ideological spectrum have blocked Trump initiatives in tough language — “egregious,” “brazen” and “lawless” — only to be summarily reversed on the Supreme Court’s shadow docket without so much as a written opinion.

The high court court’s intervention in D.V.D. v. Department of Homeland Security exemplifies this pattern. Massachusetts District Judge Brian E. Murphy confronted an avalanche of evidence that DHS was deporting people to third countries with scarcely a moment’s notice, making it impossible for those being expelled to find lawyers or assert claims of persecution. Murphy crafted a narrow remedy — simply requiring advance written notice before deportation.

The Supreme Court killed it with an unsigned midnight order on its shadow docket, no explanation given. But the message — even left unsaid — was clear.

Conservative Supreme Court justices have rebuked the lower courts for doing their job. “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Justice Neil Gorsuch admonished last month. Justice Samuel Alito in March accused a federal judge in another case involving a Trump policy as committing an “act of judicial hubris” and “self-aggrandizement of its jurisdiction.” Justice Amy Coney Barrett, in a gratuitous rebuke of Justice Ketanji Brown Jackson, warned against an “imperial judiciary” daring to strike down actions of the executive branch.

Federal judges in lower courts face assault from two quarters. Trump treats court orders as suggestions while attacking judges personally. The president goes to his social media site to trash “USA HATING JUDGES” and “MONSTERS.” His allies amplify these attacks into doxing campaigns and impeachment resolutions. From above, the Supreme Court undermines their authority through emergency reversals without opinions.

Emboldened by the Supreme Court, the administration in June — the day after the Supreme Court’s emergency order in the birthright citizenship case, which Trump hailed as a “giant win” — sued the entire 15-judge bench of the District Court in Maryland. The judges’ supposed offense? Issuing a standing order that briefly paused deportations for 48 hours to ensure a detainee’s last-minute appeal could be heard by a judge. The Justice Department’s astonishing claim was that the mere act of pausing a deportation for 48 hours to allow for judicial review injures the U.S. by the mere existence of oversight. That absurd suit has now been dismissed.

A major stumbling block is the “shadow docket.” Though a shadow docket decision doesn’t conclusively resolve the legal issues in a case, as a practical matter it often serves as the final word. Once agencies are gutted, migrants deported and major policies throttled, it is often not possible to unscramble the egg and return to the prior status quo. That is precisely why our system gives lower courts the power to order preliminary injunctions freezing status quo ante.

Unlike the high court’s regular merits docket, emergency orders are almost always decided without benefit of oral argument or extensive briefing.

District judges are worried. On the shadow docket there is no reasoning for guidance — it’s a “you know what we mean.” A curt rebuttal from the Supreme Court makes it seem like their lower court colleagues did shoddy work and are biased against Trump. Trump acolytes like Stephen Miller have accused judges ruling against the administration of “trying to subvert the presidency,” and there have been calls for their impeachment. One judge anonymously told NBC News that the Supreme Court “is effectively endorsing Miller’s claims that the judiciary is trying to subvert the presidency.”

Four recent cases, the outcome vital to Trump’s agenda, delineate the coming battle. They are surely destined for the Supreme Court this term.

The first involves the appeal from the 7-4 decision of the full Federal Circuit invalidating Trump’s declaration of a national emergency under the International Emergency Economic Powers Act to impose draconian tariffs of any kind on nearly all imports from more than 90 countries. No president in history has ever arrogated to himself such powers under IEEPA, which does not mention tariffs.

Congress gave the president extraordinary powers to “regulate” imports only in the event of dire emergencies — which would not seem to include a small trade deficit with Lesotho, Cambodia or Syria. “The core Congressional power to impose … tariffs is vested exclusively in the legislative branch by the Constitution,” ruled the Federal Circuit. Trump is seeking expedited merits review in the Supreme Court.

In the second case, Judge Charles Breyer in San Francisco declared that Trump’s deployment of the National Guard in California violated an 1878 federal Posse Comitatus statute, which bars using the military for domestic law enforcement.

Third, a panel of the conservative Fifth Circuit Court of Appeals in New Orleans just granted a preliminary injunction barring deportations of Venezuelans under the 18th-century Alien Enemies Act. The court said that the law did not apply to these migrants because there had been no “invasion or predatory incursion” by a foreign power.

And District Judge Allison Burroughs in Boston ruled that the Trump administration illegally withheld billions from Harvard University for alleged violations of rules against antisemitism. In no uncertain terms, Burroughs stated flatly that the administration’s actions were pretextual and have illegally “jeopardized decades of research and the welfare of all those who could stand to benefit from that research.”

Hope may be on the way. The game is afoot. We will see whether the justices blink and decide to rein in Trump’s overreach, or not.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.