Those of us who follow the courts are seeing something unusual. District and appellate federal court judges are criticising a Supreme Court that has lost its constitutional moorings. They are mostly–but not always– expressing those criticisms in civil and restrained language, but the fact that they are publicly criticising at all is really unprecedented.
Much of the criticism has focused on the Court’s use of its Shadow Docket to empower the Trump administration without bothering to provide legal analyses explaining why the Court is ignoring many of its own long-time precedents. In a recent New York Times article, federal Judges warned of a ‘Judicial crisis’ they attributed to the Supreme Court’s string of opaque Emergency Orders. According to the report, “dozens” of judges shared “concerns about risks to the courts’ legitimacy” as a result of these orders. As the Times noted,
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.
Other critiques have centered upon the Court’s disregard for what had long been considered binding precedent. I have previously shared widespread concerns sparked by the Dobbs decision–a deeply dishonest analysis that not only overruled the fifty-year precedent established in Roe v. Wade, but called into question the judicial doctrine of Substantive Due Process–a doctrine that restrains government intrusion into citizens’ individual liberties.
Dobbs was only one example of this Court’s willingness to disregard the foundational separation of church and state, a process that a Hawaiian Judge recently criticised in a scathing opinion. (You really need to read his entire, eloquent screed.)
The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. The Court ditches neutrality and boosts accommodation over the wall. It flirts with the true harms the framers foresaw – coercion, exclusion, and civil strife. It invites state involvement with religion. And it exposes minority faiths and nonbelievers to majoritarian impulses. A snap of a few fingers and accommodation became a constitutional imperative. “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting). Under the Court’s redesign, the Free Exercise Clause backspaced the Constitution’s first words.
The Court’s makeover happened with little mention of the Establishment Clause or Everson. Plus, the Court benched its go-to interpretive method. Suddenly, payments from the public treasury flow to religious institutions to fund religious exercise. The First Amendment had told Americans that public resources can’t support religious activity. For centuries. Yet “[w]hat a difference five years makes” to a hurried Court.
In contrast to our rogue Supreme Court, the lower courts have overwhelmingly upheld traditional constitutional principles. (An excellent example is this opinion, rendered by a Massachusetts District Court in a lawsuit brought by the AAUP, Harvard and others.) At least one organization that tracks these lawsuits has found that the administration has lost 92% of lower court suits.
Interestingly, an analysis done by a researcher for the libertarian Niskanen Center found that during Trump’s first term, Republican-appointed judges had ruled for him more frequently than their more liberal counterparts, but that this time, those ideological preferences have disappeared. Not only have a huge number of nationwide injunctions against Trump’s unconstitutional efforts been put in place by the lower courts, but the ideological divide has disappeared. Republican judges–including those appointed by Trump– are ruling against the administration at the same rate as more liberal judges.
Niskanen’s researcher found that lower courts imposed injunctions in some 90% of the cases–and that legal precedents had clearly required that result. Nevertheless, the Supreme Court has ruled for the administration almost without exception. As the researcher concluded,
It’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking…theSupreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.
Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.
Sheila rightfully brings to our attention a fundamental shift in judicial leadership historically emanating from The Supreme Court. Fascinating. Today, we are witness to powerful leadership emerging from lower courts that challenge the traditional public acceptance of what is ‘supreme’.
“Real Judges Judge The Supreme Court”
Roberts’ personal domain of SIX CATHOLIC JUDGES makes it impossible to keep separate church from state. The Judges judging this court for ignoring democracy, Rule of Law and the entire Constitution of the United States of America have also received complaints of the SCOTUS support of Trump and MAGA rule by TWO POPES.
Is anyone paying attention to anything but the dictatorship destruction of all that brought this nation to be recognized as a world leader; now including destruction of the very House of our leadership? It is all that is making news with no way to force the Legislative branch to step forward to perform the duties and responsibilities they were elected and are paid to do. The Democratic Senate members are performing their duties and responsibilities to save lives and livelihood of all Americans as Trump sends his Republican “troops” of all branches to carry out his wrath against his personal enemies.
“Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.”
“WE THE PEOPLE…” outnumber the Supreme Court Catholic majority and the Trump and MAGA minority of American elected officials and citizens. Why are we losing more control as Trump is indicting more of our leading citizens daily?
I’m glad to hear the lower courts are finally calling a spade a spade, but they are a little late to the party. SCOTUS has been unbearable since the corrupted Scalia ruled over it. Why shouldn’t they rule in favor of corruption? Who’s going to stop them?
If anyone saw the presser with Trump and his enforcers about executing people in international waters, you were able to see the blatant disregard of international and domestic laws when they pivoted to a leaked memo stating that by April 2026, the National Guard will be in major cities fighting civil unrest.
And, where is Congress during all this? What do our elected Hoosier representatives say about this? Todd Young has a military background—why isn’t he speaking out about the lawlessness of this administration?
#COWARDS
Pete Hegseth said, “We are tired of letting foreign governments influence our country.” This was a response to the “narco-terrorists” from foreign lands. Not a single question from the “press” about violating international law. It’s called piracy. Also, what about the negative influence of Israel, or specifically Bibi Netanyahu, that it has over the United States government? #FASCINATING
Israel is also violating international law by restricting aid boats from getting to Gaza with food and supplies. Intercepting the flotilla violated the law, but there were no repercussions, since The Hague already wants you, yet you proudly waltz into the White House or Congress without getting arrested.
To reiterate, this lawlessness, or blatant disregard for the law, or unethical behavior, is the status quo in this country and has been for decades. It’s been festering for a long time. We now know that the genocide of Gaza was planned long before Hamas attacked Israel (I think it was a Bibi production). Trump and Bibi confirmed it this past week. The truth is, Trump is so ignorant and illiterate that he continuously says the quiet parts out loud if you listen closely. I jump up and down waiting for the “press” to ask a follow-up question, but they never go there. #COWARDS
Beginning with one of its founders, Antonin Scalia, the Federalist Society has been the triple “A” league for Republican appointees. EVERY one of the current 6 corrupt and compromised Justices is a Federalist recruit.
What is the Federalist Society? It’s a cabal of oligarchs who fund an ideology that flies in the face of Constitutional tradition, precedents and actual written law. Why? Because the monied interests tell them to. It’s simple, one-step corruption and the nodding nabobs currently “enjoying” their seats from Republican presidents will eventually cause our democracy to fail.
Once again, the Republican party comes to the rescue of democracy, the Constitution and the democratic republic in which we attempt to live.
Separation of church and state (public funding of religious schools, etc.), women’s rights (Dobbs, etc), voting rights (gerrymandering, accessibility, etc.), and on and on. SCOTUS is corrupt, and will be until the likes of Alito and Thomas are gone, Kavanaugh, Gorsuch and especially Roberts and Barrett are less a threat to honest and thoughtful decisions. Hmmm…535 folks in Congress, POTUS + dozens in the Executive versus 9 justices on SCOTUS. Three vastly unequal branches IMHO.
Thank you, Mitch McConnell, for furthering the decay of what was once a pretty great country. Welcome to Third World Trumpland
The Roberts Court has been chipping away at the foundations of our country. Will there be enough left to rebuild on once we have removed the current destructive civil structure?
The only way to mitigate the Shadow Docket is by passing a law prohibiting a decision without an opinion on the rationale of the decision. Any such bill would have to provide an outline for the opinion. They can’t just say we wanted to do it, so we did, which is what they’re doing now.
I still believe in court reform and that more justices should be on SCOTUS, but I fear allowing that now, while the people who broke the court are still in power. If that makes me a hypocrite, so be it
In the current scheme of things, should SCOTUS set aside the 7th Circuit’s most recent affirmance of the lower district’s court’s barring of national guard forces in the city of Chicago via its “shadow docket”, the SCOTUS will have most assuredly reached its pinnacle of irrelevancy. These lower courts, based on the facts (properly determined within the purview of the district court’s authority) and the law (upon review by the 7th Circuit with due deference to the district court as the finder of facts), found no legal basis for dispatch of national guard troops to this city.
It is left for we, the people in the electorate, to restore sanity and legitimacy to the SCOTUS by retaking Congress and the White House and thereafter reforming with due dispatch the SCOTUS via imposing term limits, expanding the number of justices in the SCOTUS, and imposing mandatory rules of ethics upon all justices with severe penalties for noncompliance.
Can’t thank you enough for the Hawai’i concurrence. It points out that as bad as things seem they are a whole lot worse in reality. Our last hope is the 10th and strong state courts as the District Courts are neutered.
Thank you, David Stippler. A reasoned argument that informs. AND … relevant to Shiela’s post earlier this morning.