Even Neil Gorsuch Is Ready to Call Shenanigans on Rogue Lower-Court Trump Judges

On Tuesday, the Supreme Court heard arguments in a sham case designed to radically reduce access to medication abortion across the country. It’s one of many high-profile disputes that were manufactured through careful judge-shopping: The plaintiffs filed their case before a hand-picked Trump appointee, Judge Matthew Kacsmaryk, and guaranteed that any appeal would go straight to the far-right U.S. Court of Appeals for the 5^th Circuit. Although this procedural chicanery was not directly at issue, several justices questioned the plaintiffs’ tactics—part of a burgeoning and ongoing skepticism from the high court toward the alliance between ambitious conservative litigants and Trump-appointed judges willing to reach way beyond their own constitutional authority.

Dahlia Lithwick and Mark Joseph Stern discussed the growing backlash against rogue district courts and their 5^th Circuit enablers on the Slate Plus bonus segment of Saturday’s Amicus. Below is a preview of their conversation, which has been condensed and edited for clarity. To listen to the full episode of Amicus, join Slate Plus.

Dahlia Lithwick: Let’s turn to Justice Neil Gorsuch, who took a lengthy pause during oral arguments to complain about Judge Matthew Kacsmaryk and the “rash of universal injunctions” that seem to be originating from district courts in—surprise!—the 5^th Circuit, which the 5^th Circuit then upholds. These huge, sprawling, nationwide injunctions then create a set of deeply embarrassing emergencies at the Supreme Court. Gorsuch pointed out that there were zero universal injunctions under Franklin Delano Roosevelt’s 12 years in office, and 60 in the past four years. And he called this case “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

This was our curtain-raiser for the term—that the 5^th Circuit just keeps pantsing this court. Now it feels like even Neil Gorsuch is a little tired of it.

Mark Joseph Stern: This isn’t even the first time in March that Gorsuch has complained about nationwide injunctions from within the 5^th Circuit. Last week during arguments in the Murthy case, he took a detour to complain about the vastly overbroad injunction that Judge Terry Doughty, a Trump appointee, issued prohibiting the Biden administration from even communicating with social media companies. He groused that “we’ve seen an epidemic of these lately.”

But Gorsuch has only been partially consistent on this. He complained about nationwide injunctions under Trump, when Democratic appointees were issuing them against Trump’s policies. But then Biden came into office, a bunch of Trump judges started issuing nationwide injunctions against Biden’s policies, and Gorsuch went silent for a while. It was almost as if he wanted to let these slide for a minute to punish Biden, to send him a message and make him feel the pain.

At this stage, though, it’s too much for him. He doesn’t think they’re rooted in Article 3 of the Constitution or any statute. I will say he got the history slightly wrong—there was one nationwide injunction issued in 1939 under FDR, but the Supreme Court reversed it with harsh words in 1940. So he’s correct that this is largely a modern phenomenon. And I think he feels this keenly now in part because every Friday, when Neil Gorsuch just wants to go watch the Eras Tour with his kids, he suddenly gets pulled away and has to deal with the latest emergency out of the 5^th Circuit, because some rogue lawless judge has decided to seize power and just take control of policy for himself. I think Gorsuch has a mix of practical and ideological objections.

This manifests in another thing you and I have been thinking about, which is the 5^th Circuit’s song and dance over S.B. 4, Texas’ draconian new anti-immigrant law. Last week we saw the team of Brett Kavanaugh and Amy Coney Barrett bapping the 5^th Circuit for suddenly inventing a new rule that states, and not the federal government, can determine immigration law. We saw a pretty stern rebuke that translated to: “Don’t try this again.” And now it’s led to actual change at the 5^th Circuit?

I think that’s right. So the 5^th Circuit let this extreme law take effect, allowing Texas to implement its own immigration policies, to arrest and deport people suspected of being unauthorized immigrants. The Supreme Court blocked a very similar law back in 2012. But the 5^th Circuit put this law into effect with what it called an “administrative stay,” which is something the 5^th Circuit has been using to prevent the Supreme Court from reviewing its own orders. The 5^th Circuit said: “Oh, this isn’t about the merits. We’re just doing some docket management here. Give us a second, we’ll get back to it.” And then they’d wait for months to get back to it, and in the meantime, it let Texas do whatever it wants.

Amy Coney Barrett and Brett Kavanaugh expressed displeasure with this last week. They sent a very strong signal to the 5^th Circuit to cut it out. The 5^th Circuit got the message within hours and halted the Texas law. Then this week it handed down a 2–1 opinion explaining: “Actually, we think this law is clearly unconstitutional and violates precedent.” The chief judge of the 5^th Circuit, Priscilla Richman, wrote the majority opinion and basically just quoted big chunks of the Supreme Court’s 2012 decision to show that this is not a hard case.

That prompted a furious dissent from Judge Andrew Oldham, one of the most cynical, partisan, extreme judges on the 5^th Circuit, and, of course, a Trump appointee. Frankly, I think a lot of the displeasure that he expressed toward his colleagues in the majority was really directed at the Supreme Court. He seemed to be saying: “How dare you put us in timeout? We were supposed to be the legends who finally let Texas start deporting all of these people who just happen to have brown skin, and you won’t let us do it.” But I think Andy Oldham’s temper tantrums are losing their appeal at the Supreme Court these days, in part because they create a lot of extra work for justices who just want to sip an Aperol spritz and not think about wildly unconstitutional deportation schemes. It seems like the tide might actually be turning.

Two notes. One, you have unbelievably, amazingly specific fantasies about how Supreme Court justices spend their Friday nights. Two, I want to flag a lesson I remember from elementary school, which is that there are some kids who are capable of being shamed, and some who are just not. Now we have this really elaborate, high-level sorting mechanism wherein the Article 3 judiciary, which is supposed to interpret law for the country, is spending an enormous amount of time deflecting shame around, pushing it around the board, heaping it on one another, and crawling out from under it.

It is a deeply strange way for the federal judiciary to be doing business. We are seeing these bizarre slapbacks between jurists who are supposed to defer to the Supreme Court, rather than continuously embarrass themselves and smash cases onto the Supreme Court’s docket.

Shamelessness is a superpower, Dahlia, but only in the hands of the villains.