The Supreme Court Keeps Throwing Judges Under the Bus. They're Finally Fighting Back.
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The Trump administration faced a series of setbacks in the lower courts this past week, topped off by a major loss in its crusade to cancel $2.2 billion in federal grants for Harvard. US District Judge Allison Burroughs ruled that the assault on the university brazenly violated the First Amendment by mandating conformity with the administration's views—though she also set Harvard on a winding path of additional litigation to restore the canceled grants. In one remarkable passage, Burroughs also criticized the Supreme Court's cryptic shadow docket decisions, then condemned the justices for scolding lower courts that are unable to divine the meaning of these cryptic orders.
In this week's Slate Plus bonus episode of Amicus , Dahlia Lithwick spoke with Mark Joseph Stern about Burroughs' rebuke, part of a growing chorus of lower court judges who are angry that SCOTUS keeps throwing them under the bus. A preview of their conversation, below, has been edited for length and clarity.
Dahlia Lithwick: I think what Judge Burroughs did was quite remarkable—she took a thwack at Justices Neil Gorsuch and Brett Kavanaugh in the opinion itself. I haven't seen a lot of this punching up at the Supreme Court. Can you talk about what prompted this particular clapback?
Mark Joseph Stern: Two weeks ago, in a shadow docket order , Justice Gorsuch decided to write a little missive aimed at lower courts that were failing to divine exactly how SCOTUS wanted them to handle these decisions. He wrote: “Lower court judges may sometimes disagree with this court's decisions, but they are never free to defy them. 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.” Justice Kavanaugh joined this bench-slap to the lower courts. It was so harsh that the judge in this case, William Young, issued an apology from the bench. He said he really did not understand what the Supreme Court was trying to say in its shadow docket orders, and wasn't really sure that they were precedential. In fact, the Supreme Court has never actually deemed shadow docket orders to be precedent. A few years ago, Justice Samuel Alito insisted that they were not fully precedential!
Anyway, in response to Gorsuch and Kavanaugh's scolding, Judge Burroughs dropped an extraordinary footnote. She wrote: “The court respectfully submits that it is unhelpful and unnecessary to criticize district courts for 'defying' the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.” This is Judge Burroughs standing up for her colleagues, like Judge Young, and telling Gorsuch and Kavanaugh: You aren't even explaining yourselves most of the time and you have the gall to accuse us of defying your orders? Get a grip.
Burroughs is not the only judge who is clapping back at the Supreme Court this week. On Thursday, Lawrence Hurley at NBC published a shocking piece citing 10 federal judges who are absolutely willing to say that the Supreme Court is not OK, and that they're frustrated with the shadow docket rulings and the justices' refusal to defend Article 3 judges against a pervasive pattern of threats and harassment—not just from the American public, but from the president and members of Congress.
It does feel as though we are seeing a really burgeoning number of lower court judges just telling SCOTUS: You know what? You're not the boss of me. And you may technically be the boss of us, but I'm not going to treat you as a Supreme Court if you don't have my back here. This is an astonishing piece of reporting, but also an astonishing decision by jurists who are loath to criticize anyone.
I think this response from lower court judges is long overdue. And I also would bet that all of the judges who express this frustration are relatively recent appointees on the younger side. I think there is an emerging generational divide: Older judges grew up with a Supreme Court that was still acting like a real court for most of their time on the bench; younger judges have only ever served under a Supreme Court that is corrupted by partisan politics. I think it has now fallen on these younger judges, like Burroughs, to stand up and defend colleagues who are temperamentally disinclined to stand up for themselves.
I guess now there's the inevitable counter-response from at least some of the justices who are out there now saying that they didn't really mean to criticize the lower courts. At a talk on Thursday, Justice Kavanaugh went out of his way to praise “trial judges who operate alone” and “operate on the front lines of American justice.” And he added: “I definitely want to thank all the judges.” How do you square this with him fully signing off on a Gorsuch opinion smacking trial court judges upside the head? I guess he's trying to still the waters here, but this is just shoddy PR.
I can't tell if Kavanaugh genuinely regrets signing onto that and is experiencing true remorse—especially after seeing some judges' reactions—or if he's just trying to play good cop and bad cop all at once. Kavanaugh has done this before; for instance, he notoriously signed onto a Clarence Thomas dissent in the census citizenship case that accused the district court judge, Jesse Furman, of being a kind of crazy-eyed conspiracy theorist who puts pins on a board and connects them with string. And afterwards, according to CNN's Joan Biskupic , he wrote a letter to Judge Furman essentially apologizing for joining an opinion that slandered him.
So maybe this is just Kavanaugh's MO; he signs on to these nasty, unfounded criticisms of lower court judges, and then walks it back later on. But he literally said on Thursday to the lower court judges: “Keep doing what you're doing.” That is the polar opposite of the Gorsuch opinion that he just joined! It's a really bad look. And I think it shows him still struggling to figure out the right tone to strike when there is an unprecedented revolt in the lower courts against the Supreme Court's partisanship.
File this under Kavanaugh having no self-regulation when it comes to how stuff is going to land. But it's not just Kavanaugh; Chief Justice John Roberts also seemed to comment on the utter abandonment of lower court judges by some members of the Supreme Court. And he did it through his counselor, Robert Dow, who was speaking at the 6th Circuit Judicial Conference this week. Dow said: “The problem for our branch is that we have a very tiny megaphone, and if we use our megaphone too often, we risk losing what I would say is the long game, and the long game is to preserve our independence.”
It's this completely inscrutable message where Dow is simultaneously saying that Roberts is trying to protect the integrity and the esteem of the judiciary, but at the same time, he's trying to steer clear of politics. If this is an attempt to mollify district court judges who are essentially telling SCOTUS that it's letting them twist in the wind, does it help?
Obviously not. And to be clear, Roberts hand-picked Dow; we should assume that Roberts signed off on anything Dow says in public. So I think this is the chief's attempt to respond. And it won't work, in part because it's not really an apology at all. It's an excuse. It's an effort to say: Don't be mad at us. We just have the world's tiniest megaphone. So I will play the world's tiniest violin for them and say: No, you don't . When the justices want to crap all over the lower courts, that megaphone gets nice and loud. But when there is a potential confrontation with Donald Trump—when the Trump administration violates lower court orders—the megaphone suddenly shrinks to microscopic size. It doesn't work as an excuse at all. And Roberts must know that.
I also think this will likely be the chief justice's last word on this for some time. And if he continues signing off on these opinions that reward the Trump administration for defying lower courts, that condemn lower courts for allegedly defying inscrutable shadow docket orders, he is still part of the problem. He is still putting lower court judges at risk. He is still fostering a culture of disregard for judicial orders. And that is all going to come back to bite him when the Trump administration decides: Hey, if we can ignore these lower courts without any real consequence, we can ignore the Supreme Court too.
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