Federal Judges

The judges are ‘sounding the alarm’ over Supreme Court’s overuse of the shadow docket. Somebody *had* to say it. – Kathryn Rubino

“In A Bold Move, Federal Judges Are Calling Out The Supreme Court’s Bullsh*t,” Above the Law

There’s a pretty clear hierarchy in the federal judiciary, with the nine justices on the Supreme Court sitting at the top of the pyramid. So much so that a district court judge recent took the unusual step of apologizing to the Supreme Court for not divining precisely what a shadow docket decision — sans a written opinion, natch — meant.

So it’s unusual for lower court judges to talk smack about the High Court. But that’s what a bunch of judges did — anonymously — to NBC News about the foreshadowed shadow docket. (Yes, we will continue to refer to SCOTUS’s emergency docket as the shadow docket– a term penned by Professor William Baude from the University of Chicago, no matter the desires of Brett Kavanaugh because it more accurately reflects the shady ass shit the Court is doing with it.) See, they’re miffed that despite the hard work the district courts are doing on the contentious issues that are flooding to the courts thanks to the Trump administration’s flouting of a wide variety of laws, political norms, and, you know, the Constitution, as soon as they rule against the administration, the shadow docket swoops in. Those unbriefed decisions without written opinions are overwhelmingly going in favor of the administration and are leaving the lower courts in the lurch.

Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.

“It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs.”

That’s especially true given the mounting threats against federal judges. And when the shadow docket over-turns the lower courts without explaining themselves, they open the door to the increasingly heated rhetoric  coming from the administration. And the MAGA faithful have taken the bait, amping up the threats aimed at the judiciary. For example, two judges received extra security details after their rulings put a pause on the DOGE takeover and resulted in right-wing backlash. And the administration’s response to the judicial threats has been  absolutely unhinged. One judge said, “Certainly, there is a strong sense in the judiciary among the judges ruling on these cases that the court is leaving them out to dry. They are partially right to feel the way they feel.”

The Supreme Court, a second judge said, is effectively assisting the Trump administration in “undermining the lower courts,” leaving district and appeals court judges “thrown under the bus.”

The Supreme Court has an obligation to explain rulings in a way the public can understand, a third judge said, adding that when the court so frequently rules for the administration in emergency cases without fully telling people why, it sends a signal. The court has had strong left-leaning majorities in the past, but what is different now is the role emergency cases are playing in public discourse.

It’s stunning that lower court judges feel the need to call out SCOTUS like this. Alicia Bannon, Director of the Kohlberg Center on the U.S. Supreme Court at the Brennan Center for Justice at NYU Law, pointed out it’s “clear that lower court judges are sounding the alarm.”

“Our democratic institutions are facing unprecedented threats and federal judges are on the front lines. This means lots of fast-moving cases and novel legal issues. It has been VERY striking to see the disconnect between lower courts and SCOTUS in how to approach this rule of law emergency.”

And it’s a terrible indicator for our legal system.