Dozens of sitting judges shared with The Times their concerns about risks to the courts’ legitimacy as the Supreme Court releases opaque orders about Trump administration policies.
By Mattathias Schwartz and Zach Montague in the NYT
More than three dozen federal judges have told The New York Times that the Supreme Court’s flurry of brief, opaque emergency orders in cases related to the Trump administration have left them confused about how to proceed in those matters and are hurting the judiciary’s image with the public.
At issue are the quick-turn orders the Supreme Court has issued dictating whether Trump administration policies should be left in place while they are litigated through the lower courts. That emergency docket, a growing part of the Supreme Court’s work in recent years, has taken on greater importance amid the flood of litigation challenging President Trump’s efforts to expand executive power.
While the orders are technically temporary, they have had broad practical effects, allowing the administration to deport tens of thousands of people, discharge transgender military service members, fire thousands of government workers and slash federal spending.
The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.
Sixty-five judges responded to a Times questionnaire sent to hundreds of federal judges across the country. Of those, 47 said the Supreme Court had been mishandling its emergency docket since Mr. Trump returned to office.
The judges responded to the questionnaire and spoke in interviews on the condition of anonymity so they could share their views candidly, as lower court judges are governed by a complex set of rules that include limitations on their public statements.
Of the judges who responded, 28 were nominated by Republican presidents, including 10 by Mr. Trump; 37 were nominated by Democrats. While those nominated by Democrats were more critical of the Supreme Court, judges nominated by presidents of both parties expressed concerns.
In interviews, federal judges called the Supreme Court’s emergency orders “mystical,” “overly blunt,” “incredibly demoralizing and troubling” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts were in the midst of a “judicial crisis.”
The responses to The Times serve as the most comprehensive picture to date about the extraordinary tensions within the judiciary, hints of which have begun to spill out publicly.
At a hearing in September, Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit said his court was “out here flailing” as it tried to apply vague emergency rulings from the Supreme Court that left judges “in limbo.” Ruling on a different case, Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts noted that the emergency orders “have not been models of clarity.”
The Supreme Court has so far issued emergency orders in about 20 cases involving the Trump administration’s policies. In at least seven of those orders, the majority offered no reasoning for its decision.
At public events, some Supreme Court justices have defended their use of the emergency docket as a legitimate response to the increase in swift presidential policy-making by executive order, as opposed to legislation passed through Congress. Offering extensive reasoning or explanation, they argued, would risk locking the court into a position that might not turn out to be its final view.
A spokeswoman for the Supreme Court did not respond to a request for comment.
The Times reached out to more than 400 judges, including every judge in districts that have handled at least one legal challenge to a major piece of Mr. Trump’s agenda.
Most of those who declined to participate did not give a reason. Others said they did not think it was their place to judge the work of the Supreme Court.
The judges who responded may not represent the views of the entire judiciary, but to have even several dozen judges out of the nation’s more than 1,000 district, appellate and senior judges express such concern about the Supreme Court’s behavior is highly unusual.
Forty-two judges went so far as to say that the Supreme Court’s emergency orders had caused “some” or “major” harm to the public’s perception of the judiciary. Among those who responded to the question, nearly half of the Republican-nominated judges said they believed the orders had harmed the judiciary’s standing in the public eye.
Twelve judges who responded to the questionnaire said they believed the Supreme Court had handled its emergency docket appropriately. But only two said public perception of judges had improved as a result of how the Supreme Court had handled its recent work.
Note: Eleven judges who either declined to respond to this question or said they did not know are not included. (continued on Page 2 or here)