Tuesday, July 15, 2025
Undermining district courts
Speaking of SCOTUS’ Order staying the injunction in McMahon, a WH spokesperson said the Court “once again recognized what radical district court judges refuse to accept–President Trump, as head of the executive branch, has absolute constitutional authority to direct and manage its agencies and officers.” Not that the majority cares–obviously–but this statement illustrates every problem with the Court’s approach to these cases and orders.
The top of the judicial hierarchy is actively undermining the lower levels it is designed to lead. By summarily rejecting district judges’ hard work, the Court tees up the administration to criticize district judges as radicals who disobey or try to make-up law out of personal opposition to Donald Trump and whose orders the government therefore can disregard because only SCOTUS matters. This is not new. Despite John Roberts’s peans to district judges in the occasional year-end report, a tenor of disrespect for (beyond mere disagreement with) district judges burbles under the surface with SCOTUS. Many legal doctrines (especially procedural stuff, such as pleading rules or everything surrounding qualified immunity) reflect an unstated disrespect for district judges, or at least their ability to achieve what SCOTUS wants.* Some of this enhances the Court’s power (the theme of Lemley’s Imperial Supreme Court and of Justice Kavanaugh’s CASA concurrence). But it is leaking out to the executive–SCOTUS is giving its imprimatur to those outside the judiciary to criticize and ignore lower courts as out of control. And despite Roberts’ umbrage when law professors criticize judges, he remains silent when the President–who, according to his spokesperson, has “absolute” power in certain areas–does it.
[*] I always return to Scalia’s snark about “the discretionary decision of a single district judge” preventing the AG and FBI director from doing their jobs.
The Court exacerbates this by not explaining or justifying the order. The failure to explain obviously gives the administration opportunities to score propaganda points by inventing an explanation. The Court did not say the President has absolute authority over agencies, which is not a true statement of law. But the absence of a counter-narrative from the Court allows the executive to fill the space with a justification that becomes true.* But SCOTUS’ silence allows the Administration to use those false reasons as the basis for criticizing and ignoring district judges–district courts refuse to accept or respect the law and rightful presidential power as SCOTUS understands it.
[*] Sure, the statement may prove if the Court eventually rules against the administration. But by then we will not have a functioning Department of Education, so no one will care.
Posted by Howard Wasserman on July 15, 2025 at 07:45 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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