New in Civitas Outlook: "The Failed Lower Court Revolt"

Civitas Outlook has published my new essay, titled The Failed Lower Court Revolt. Here is the introduction:

Shortly before President Trump began his second term, Chief Justice John Roberts issued a not-too-subtle warning: the incoming administration might ignore Supreme Court rulings. Roberts was right that the high court's ruling would be discarded, but Trump is not to blame. Indeed, the Trump Administration stated in absolute terms that it would follow every facet of Supreme Court decisions. For better or worse, Trump has tied his fate to the Nine. 

Rather, we are witnessing a remarkable shift in the lower courts. Federal judges on the East and West Coasts–not in flyover country–are blocking nearly every action taken by the Trump Administration. In some cases, judges are issuing emergency orders within hours, without even reading all the briefs. And through procedural rules, they can insulate their rulings from any appeal for up to a month. Due to forum shopping, federal courts of appeals within driving distance of an ocean invariably affirm these orders. 

The Trump Administration has only one possible recourse: the United States Supreme Court. Much has been written about the so-called "shadow" or emergency docket. But the simple truth is that unless the Supreme Court intervenes at an early point–what Justice Brett Kavanaugh calls the "interim before the interim"–inferior court judges will basically have the final say over executive power. And to be clear, it is the Constitution that calls them "inferior" judges. Inferior courts sit below the United States Supreme Court. The Supreme Court has declared that "[U]nless 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 may think it to be." Yet, in the view of a majority of the Supreme Court, anarchy by the inferior courts is reigning supreme.

I talk about three lines of cases where the Supreme Court was forced to promptly, and sharply, rebuke lower courts that were out of line. I conclude:

Perhaps we can make an addendum to this concept of the presumption of regularity. No President can actually lose this presumption. This deference is afforded to the President by virtue of his victory in the election; nothing his administration says or does can affect that presumption. But federal judges lack any such accountability. I think the Supreme Court is telling lower federal judges–especially in Boston–that they have lost the presumption of judicial regularity. And so long as they issue rulings that do not faithfully follow precedent, the Supreme Court will feel compelled to intervene on the emergency docket. As Justice Gorsuch explained, "Lower court judges may sometimes disagree with this Court's decisions, but they are never free to defy them." 

We should be grateful that the Supreme Court stopped this failed lower court revolt. Chief Justice Roberts seems partially committed to this cause. He joined the majority in D.V.D. and Boyle, but not in NIH. I think the Chief Justice should worry far more about a revolt from the lower courts than resistance from Trump.