The Extreme Court Keeps Throwing Judges Under the Bus. They're Finally Fighting Back.
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. U.S. 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!
https://www.yahoo.com/news/articles/supreme-court-keeps-throwing-judges-175548215.html