American judges appear increasingly confused by recent decisions by the Supreme Court and appeals courts, as they handle key parts of President Donald Trump’s radical agenda.
Last week, judges on a federal appeals court butted heads about how much weight lower courts should give to the Supreme Court’s emergency orders.
The Trump administration has increasingly used the high court’s emergency docket, referred to as the “shadow docket” by critics due to its lack of transparency, to quickly seek intervention from the justices in cases still playing out in lower courts. The high court sided with the Trump administration in about two dozen decisions last year, often lifting the orders of lower court judges who found their policies were likely illegal. Such shadow docket rulings come without opinions, meaning judges are unsure of the legal arguments that swayed the justices.
On Tuesday, when a divided appeals court ordered a halt to a contempt investigation into the Trump administration on Tuesday, a dissenting judge decried how her colleagues’ decision “will echo” for generations to come.
The views of the judges, expressed in a series of opinions and dissents, reveal their confusion about how to administer—and uphold the rule of law—in response to the precedent set by higher courts as the Trump administration seeks to move forward with controversial policies, including on immigration.
Meanwhile, Trump and administration officials have repeatedly bristled at judicial oversight and challenged judges’ authority to review executive branch policies, with the president directing attacks towards judges who have ruled against him.
The disagreement among judges on the U.S. Court of Appeals for the Fourth Circuit about how the Supreme Court’s emergency orders should be treated played out in concurring and dissenting opinions in a case related to the Department of Government Efficiency, or DOGE. The majority of the court threw out a lower court ruling against DOGE, given the Supreme Court had lifted the lower court’s order on its emergency docket while the case continued through the courts.
Judge James Wynn, who was appointed by former Democratic president Barack Obama, warned in a dissent against lower courts filling “gaps in Supreme Court reasoning with our own assumptions about what must have been decided.”
Wynn wrote: “To treat interim orders as binding precedent abandons our long-held jurisprudence of deciding constitutional law through reasoned opinions, not emergency motions made under intense time pressure.
More profoundly, it would weaken the public’s confidence in the integrity of our judicial system’s commitment to deliberation and transparency.”
But Judge J. Harvie Wilkinson, an appointee of former Republican president Ronald Reagan, called Wynn’s opinion a “rhetorical assault upon the Supreme Court.” Despite the lack of explanation, Wilkinson write in his opinion that interim orders are “real proceedings with legal effect, and they may have appreciable bearing in such postures.”
The docket is a source of disagreement among the court’s justices, and liberal Ketanji Brown Jackson and conservative Brett Kavaanugh publicly disagreed over the court’s handling of emergency appeals involving the Trump administration at an event last month.
Jackson on Wednesday called the orders “scratch-paper musings” that can “seem oblivious and thus ring hollow.” And last week, Justice Sonia Sotomayor also took issue with her conservative colleagues’ approach to greenlighting the Trump administration’s policies without full briefing or oral arguments.
The concerns about the precedent set by higher court judges has also come into play when the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday ordered Chief U.S. District Judge James Boasberg to end a contempt investigation of the Trump administration for failing to comply with an order turn around planes carrying Venezuelan migrants to El Salvador last year.
In a 2-1 ruling, Circuit Judges Neomi Rao and Justin Walker, both Trump appointees, said Boasberg had abused his discretion in forging ahead with his criminal contempt inquiry into why the planes weren’t turned around.
Boasberg had ordered oral testimony from two government lawyers after the Justice Department admitted then-Homeland Security Secretary Kristi Noem had made the decision not to turn the planes around.
The ruling sided with Noem’s argument that Boasberg had, while giving the oral order, not included it in his written order.
Rao and Walker’s colleague Michelle Childs, who was nominated by Democratic President Joe Biden, warned of the consequences of the ruling in a lengthy dissent, saying it could undermine the authority of federal courts since contempt is one of the few tools judges have to ensure compliance.
“Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such,” Childs wrote.
“In the many forms in which it can be committed, contempt degrades the power that the people, through their Constitution and Congress, gave the federal courts. Without the contempt power, the rule of law is an illusion, a theory that stands upon shifting sands.”
All in all, the Supreme Court’s emergency orders and unclear powers have left some judges in the dark during a period in which the American public’s eyes are focused on them like never before.
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