By Jan Wolfe and Nate Raymond
(Reuters) -An extraordinary spat is occurring within the U.S. judiciary concerning a flurry of Supreme Court decisions backing President Donald Trump, with judges voicing confusion over the rulings issued on an emergency basis while a Trump-appointed justice accused some of them of defying the nation’s top judicial body.
These decisions have let the Trump administration implement contentious policies that were impeded by judges who had cast doubt on the legality of the Republican president’s actions. In issuing such opinions, the Supreme Court has offered little or no reasoning for its actions. That has caused exasperation among some of the judges whose decisions have been lifted, with conservative Supreme Court Justice Neil Gorsuch offering them a biting response.
The cases at issue have been decided on what is called the “shadow docket.” These decisions are issued on an expedited basis outside the usual appeals process. In such cases, public oral arguments before the justices are not held and rulings are typically curt and unsigned. There is more transparency in cases decided through the normal process, with arguments for all to see and a detailed decision laying out the legal reasoning.
Several judges handling cases involving legal challenges to Trump policies in recent months have criticized rulings issued on the shadow docket. This controversy has brought renewed focus on the shadow docket, which long was a rarely used path for cases but now has become commonplace – and has surged since Trump returned to office in January.
Trump’s administration has filed 25 emergency applications with the Supreme Court this year challenging rulings impeding his policies, while another such application was filed in a Trump-related case by lawyers for migrants on the verge of deportation. The court has acted in 24 of these cases. It has sided with Trump entirely or in part 21 times and decided against him twice. The court postponed action in one case that later was declared moot, and the administration withdrew two applications.
The court’s 6-3 conservative majority includes three justices appointed by Trump during his first term in office.
Its most recent shadow docket ruling came on Monday when the court again backed Trump’s hardline immigration approach, letting federal agents proceed with raids in Southern California targeting people for deportation based on their race or language – a ruling that the liberal justices said makes Latinos “fair game to be seized at any time.”
Previous shadow docket rulings have backed Trump on, among other matters, deportations of immigrants to countries other than their own, revoking temporary legal status for hundreds of thousands of migrants, banning transgender people from the military, pursuing mass federal job cuts and removing various federal officials.
Because the court is not explaining its shadow docket rulings, judges lack any meaningful guidance about what to do in future cases, Georgia State University law professor Anthony Michael Kreis said.
“Even the judges who enjoined the government in the very case before the Supreme Court are sometimes left confused about what, if anything, remains in effect from their initial injunction because of the court’s slapdash work,” Kreis said.
At issue in particular has been the degree to which the shadow docket actions set a nationwide legal precedent.
Joshua Blackman, a law professor at South Texas College of Law in Houston, said judges “have to be living under a rock to not know at this point that these orders are precedential.”
But Blackman said judges have “some room for grievance” because compromises struck by the justices to reach decisions in rushed shadow docket cases at times have resulted in vague orders.
‘ISSUES UNRESOLVED’
Comments last week by Boston-based U.S. District Judge Allison Burroughs, who ruled that the administration unlawfully terminated billions of dollars in grant funding to Harvard University, illustrated the tensions over the shadow docket.
Burroughs in a footnote in her ruling wrote that the Supreme Court’s “recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.”
Burroughs, an appointee of Democratic former President Barack Obama, wrote that judges are doing their best to “grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”
Gorsuch last month pushed back against the criticism by judges, writing a concurring opinion in a case in which the court let Trump proceed with cuts to U.S. National Institutes of Health research grants related to racial minorities or LGBT people as part of the president’s crackdown on diversity, equity and inclusion initiatives and transgender identity.
Joined by fellow conservative justice and Trump appointee Brett Kavanaugh, Gorsuch wrote that all Supreme Court orders carry the weight of precedent, regardless of whether or not they were issued in a shadow docket ruling.
Gorsuch rebuked three U.S. district judges who had ruled in Trump-related cases – William Young, Brian Murphy and Matthew Maddox – saying their decisions were at odds with Supreme Court orders in shadow docket cases.
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Gorsuch wrote.
‘UNHELPFUL AND UNNECESSARY’
Burroughs in her Harvard ruling called Gorsuch’s comments toward the three judges “unhelpful and unnecessary.”
Missives of the type written by Gorsuch and Burroughs are highly unusual, according to Taraleigh Davis, a Bradley University professor who has written about the shadow docket.
Of Gorsuch’s message to the three judges, Davis said, “I’ve never seen a scolding like that.” Of the Burroughs retort, Davis added, “I haven’t seen such a pointed footnote directed at a Supreme Court justice’s opinion like that.”
Davis said Gorsuch risked contributing to a public perception of judges as partisan activists, an impression that she said Trump has helped foster with his rhetoric. Trump called on Congress to impeach one judge who ruled against him and he and other administration officials routinely refer to judges who have impeded his agenda as “radical left.”
“The tensions are even more heightened because of the discourse around federal judges from the administration,” Davis said.
Rhode Island-based U.S. District Judge Melissa DuBose, an appointee of Democratic former President Joe Biden, in a July order in litigation challenging Trump’s overhaul of the U.S. Department of Health and Human Services said she “will not interpret the Supreme Court’s shadow docket summary orders (issued without any reasoning or explanation) as definitive indications.”
When U.S. District Judge John Woodcock Jr, an appointee of Republican former President George W. Bush, issued an order barring the administration from cutting off funding that the state of Maine uses to provide meals for school children, he said shadow docket orders have “limited precedential value” due to the lack of “full briefing or hearing.”
The Boston-based Young, an appointee of Republican former President Ronald Reagan, had issued the order in the NIH grant cuts case.
At a hearing last week, Young said Gorsuch’s comments marked the first time in his 47 years as a judge that he had ever been accused of defying a higher court’s order. Young said he felt he should apologize to Gorsuch and Kavanaugh “if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court in the United States.”
“I simply did not understand that orders on the emergency docket were precedent,” Young said.
(Reporting by Nate Raymond in Boston and Jan Wolfe in Washington; Additional reporting by Andrew Chung; Editing by Amy Stevens and Will Dunham)
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