The Volokh Conspiracy
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"A Recipe for District Judge Supremacy"
Judge Ho addresses Trump v. J.G.G.
Today, a divided panel of the Fifth Circuit granted a writ of mandamus in a death penalty case. In this case, the district court improperly exercised jurisdiction over a clearly moot case, and then refused to dismiss the case. Mandamus seems plainly warranted.
Judge Ho wrote a concurrence that speaks directly to controversies of the day:
Our dissenting colleague asks: What's the rush? Even assuming that the district court erred, the dissent contends that there's no need for immediate relief—just let things play out through "[t]he typical appellate process." Post, at _ (Haynes, J., dissenting).
But that's cold comfort to the millions of voters who took the time to participate in the democratic process, only to see their legitimate efforts unlawfully undone by a single district judge.
If a district judge abuses the legal process in a hurried effort to thwart the lawful political choices of the electorate, appellate courts are well within their right to intervene and grant emergency relief.
The Supreme Court did just that last week in Trump v. J.G.G., _ U.S. _ (2025). There (as here), a district court presumed to seize control over a case of profound public interest that it had no lawful business deciding, because it belonged in another court. So the Supreme Court intervened and took the case away from the district court. See id. at _ ("Challenges to removal under the [Alien Enemies Act] . . . must be brought in habeas. . . . [J]urisdiction [in habeas cases] lies in only one district: the district of confinement. The detainees are confined in Texas, so venue is improper in the District of Columbia.") (cleaned up).
Like our dissenting colleague here, the dissenting Justices in J.G.G. urged delay. The dissent agreed with the majority that the only thing at stake was deciding which district court had the authority to decide the case. See id. at _ (Sotomayor, J., dissenting) (noting that the dispute merely concerned "which procedural vehicle is best situated for the Plaintiffs' injunctive and declaratory claims"). But the dissent maintained that there was no need for appellate courts to "rush" in and "decide the issue now"—just wait for an appeal in the "ordinary course." Id. at _ (Sotomayor, J., dissenting).
The Supreme Court rejected the dissent's plea for delay. The majority understood that waiting for an appeal in the "ordinary course" would inadequately protect the government from the indignity of litigating in the wrong proceeding—not to mention unduly delay the expressed will of the people. As the Court put it, "[w]e see no benefit in such wasteful delay." Id. at _.
I most certainly concur. When a district judge acts hastily, yet appellate courts are told not to "rush in," that's not a plea for judicial sobriety—it's a recipe for district judge supremacy.
I made similar points in a post last month, titled Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.
Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?
Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.
It is often joked that being a District Court Judge is the closest thing to being a god. I think federal judges in the beltway should read Judge Ho's concurrence a few times.
