A friend recently responded to my article arguing that the lower federal courts are doing their job in limiting the enforcement strategies of the Trump administration. She pointed out, “But he owns the Supreme Court.”
It seems the Supreme Court is hesitant to overturn what many view as Trump’s reckless enforcement decisions. This hesitance contrasts sharply with the courage shown by President Harry Truman back in 1952 when he was ready to seize a steel mill. I’m reminded of how the Court back then might fear a constitutional crisis if Trump were to disregard a negative ruling.
Between May and July, the Federal District Court generally sided against the administration about 94.3% of the time. But, in a twist, the Supreme Court reversed its rulings in approximately 93.7% of cases, especially those filed under its emergency or “shadow” dockets.
On issues ranging from immigration to NIH grants, federal judges across various ideological lines have sharply criticized Trump’s initiatives with strong terms like “Awful,” “Brazen,” and “Lawless.” These sentiments are often upended quickly in the shadow docket of the Supreme Court.
An example of this dynamic is found in the case of DVD vs. Homeland Security. Massachusetts District Judge Brian E. Murphy faced overwhelming evidence showing that the DHS was swiftly deporting individuals, leaving little room for legal recourse. Murphy’s solution was to insist on prior written notice before any deportations occurred.
However, the Supreme Court swiftly overturned this decision via a last-minute order, leaving no explanation but sending a clear message.
Some conservative justices have criticized lower court judges for doing their jobs. Justice Neil Gorsuch, for example, commented that while lower court judges might disagree with the Supreme Court, they wouldn’t undermine its authority. In a related incident, Justice Samuel Alito characterized one federal judge’s actions as overstepping the judiciary’s role.
Trump’s reaction has often been aggressive, treating court rulings as mere suggestions and personally attacking judges. On his social media platform, he refers to judges in derogatory terms, labeling them as “monsters.” His supporters have taken this further, launching campaigns against some judges, while the Supreme Court reinforces its authority through emergency reversals without much commentary.
The Supreme Court’s stance in June was celebrated by Trump as a significant win. He challenged the 15 judges in Maryland after they issued a brief order to pause deportations for 48 hours, allowing for last-minute appeals from detainees. The unexpected argument from the DOJ was that merely halting deportations would somehow harm the U.S. This argument, thankfully, was dismissed.
The shadow docket presents a major problem. Its decisions don’t really address the legal issues at play, yet they often act as if they do. Once deportations occur, affected immigrants often can’t return to their previous status, which is why lower courts hold the power to block such actions temporarily.
Unlike regular court proceedings, emergency orders are usually issued without detailed discussions or thorough briefings.
Many district judges worry about the shadow docket’s lack of clarity. Without explicit guidance, it can seem arbitrary. Criticism from the Supreme Court has led observers to feel like lower courts are becoming biased in favor of Trump. Some even argue that this creates an environment where the judiciary is perceived as attempting to undermine the presidency.
Looking ahead, four significant cases are coming that will shape Trump’s agenda and likely face challenges in the Supreme Court.
One involves a decision from the Federal Circuit that overturned Trump’s declaration of a national emergency to impose tariffs on numerous imports. Historically, such expansive power hasn’t been claimed by a president under the International Emergency Economic Powers Act.
In another case, San Francisco Judge Charles Breyer ruled that Trump’s use of the National Guard in California violated the 1878 Posse Comitatus Act, which restricts military involvement in domestic law enforcement.
A third case saw the conservative Fifth Circuit Court of Appeals issue a temporary injunction against deporting Venezuelans, stating that they didn’t meet the criteria of enemy aliens without evidence of aggression.
Finally, Boston District Judge Alison Burrows determined that the Trump administration unlawfully withheld funding from Harvard, labeling their rationale as baseless and harmful to broader research initiatives.
There may yet be a glimmer of hope. The judiciary now faces a crucial moment—whether it will successfully curb Trump’s tendencies toward overreach.
