The Judicial Insubordination Crisis
Lower-court judges are defying precedent and even openly criticizing Supreme Court justices.
By Elizabeth Price Foley and Mark Pinkert
President Trump’s most enduring legacy may be his appointment of enough Supreme Court justices to create the first originalist majority in the modern era.
Now some lower-court judges have become brazenly defiant, not only of the administration’s agenda but also of high court opinions.
In response, the justices have had to remind lower courts of their constitutional role and chastise them for resisting court precedent.
But the resistance continues, threatening to erode the judiciary’s ability to function.
The Supreme Court isn’t designed to be a cop that enforces federal law or micromanages inferior courts.
It hears only a small number of cases, usually fewer than 80 a year.
The high court is the apex of the judicial branch, and Congress creates lower federal courts to help carry the load.
Along with state judges, lower federal judges adjudicate the bulk of federal-law cases, and they take the same Article VI oath to support the Constitution as the justices do.
The high court’s precedent is binding on all lower courts.
As the court observed in Hutto v. Davis (1982), “unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts think it may be.”
To be sure, it isn’t always easy to apply the high court’s precedent, especially when it entails open-ended balancing tests, flexible doctrines and conflicting directives within opinions and with older rulings.
In Students for Fair Admissions v. Harvard (2023), to take a recent example, the justices held that race-based college admissions programs violate the Equal Protection Clause—but that colleges can consider “an applicant’s discussion of how race affected his or her life.”
That concession invites colleges to continue considering race, spawning more ambiguity and litigation.
Compounding the problem of ambiguous precedent, some district judges have issued vague and sweeping decisions that grant injunctive relief to stop the executive branch from acting.
These decisions, in turn, force the Supreme Court to issue emergency orders more frequently.
Such orders are handed down quickly, without full briefing or argument.
Lower courts then lament that the orders are unclear, which results in flawed rulings that lead to more emergency orders from the justices.
So far this year, the high court has issued 20 emergency orders, revealing a significant disconnect between the justices and some lower-court judges.
But there’s a much more troubling trend: Some lower federal judges are acting as if their job is to resist the Trump administration’s agenda rather than follow Supreme Court precedent.
They overtly express disagreement with the court, then use clever tactics to evade the high court’s directions.
Sometimes they employ a hyper-narrow construction of the court’s rulings.
Other times they make dubious factual determinations, knowing that appellate courts will give them deference.
The subterfuge creates a serious challenge for the justices, since they don’t have the capacity to review every misapplication of their precedent.
This emboldens some lower-court judges to push the boundaries, and the intrajudiciary tension has reached a fever pitch recently.
Last week, in a partial concurrence with an emergency ruling, Justice Neil Gorsuch (joined by Justice Brett Kavanaugh) admonished lower courts not to “defy” the court.
He noted that judges in this case and others “invoke the ‘persuasive authority’ of a dissent or a repudiated court of appeals decision to reach a different conclusion” from the Supreme Court’s.
They observed that one district court tried to compel the administration’s compliance with an order the justices had already stayed, and another district judge ignored a Supreme Court decision even though “the case at hand did not differ in any pertinent respect from the one the Court had decided.”
They implored lower judges to “respect the hierarchy of the federal court system created by the Constitution and Congress.”
Some lower-court judges still haven’t gotten the message.
One chided the justices in dicta that it is “unhelpful and unnecessary to criticize district courts.”
An anonymous group of 12 lower-court judges took their grievances to NBC News, telling a reporter that the high court’s rulings are “validating the Trump administration’s criticisms” of lower courts.
One said “it’s inexcusable” that the justices don’t “have our backs.”
Four judges opined that the justices, especially Chief Justice John Roberts, “should do more to defend the courts,” in the reporter’s words.
Another judge complained that he and his colleagues have been “thrown under the bus.”
But even an Obama appointee admitted that “the whole ‘Trump derangement syndrome’ is a real issue” and that lower-court judges “are sometimes forgetting to stay in their lane.”
There is little the other branches can do to solve the problem.
Legislation to reorganize or otherwise alter the lower courts would need to overcome the Senate’s 60-vote filibuster threshold, and impeaching a defiant judge requires a two-thirds Senate vote for conviction.
But the justices could be more proactive in offering clear guidance to the inferior courts.
They should avoid writing opinions that contain obvious ambiguities like the one in Fair Admissions.
They should also clear away the underbrush of nonoriginalist constitutional law, overruling such precedents rather than narrowing, distinguishing or calling them into doubt.
Although the court has shored up Free Exercise Clause rights over the past five years, it has yet to overrule Employment Division v. Smith (1990), a disastrous decision that gives government officials and courts far too much flexibility to burden religion.
And all the hullabaloo over the president’s authority to fire executive-branch officers would be quieted if the court flatly overruled Humphrey’s Executor v. U.S. (1935) rather than merely chip away at it.
The court has a duty to provide doctrinal clarity, especially on constitutional law.
While the Roberts court has achieved success in its effort to restore the Constitution’s original meaning, this success will be fleeting unless the court begins speaking with a clearer, more decisive and unified voice.
Until that happens, lower-court resistance will continue, and the court will risk leaving a legacy of confusion and lost opportunity.
Ms. Foley and Mr. Pinkert practice constitutional and appellate law at Holtzman Vogel PLLC. Ms. Foley is also a professor of constitutional law at Florida International University College of Law.
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