Another Boston Judge Pushes Back Against Supreme Court Emergency Docket Ruling

The Lower Court Revolt Continues.

Remember Massachusetts District Court Judge Allison Burroughs? She wrote the opinion finding that Harvard engaged in no discrimination against Asian students and minimized the effect of some damning Admission Office emails. The Supreme Court roundly rejected her findings of facts in Students for Fair Admissions. As Justice Sotomayor pointed out in dissent, Chief Justice Roberts failed to "review the District Court's careful fact-finding with the deference it owes to the trial court." With good reason.

Fast forward to the Trump Administration. By luck of the draw, Judge Burroughs was assigned Harvard's funding case against the executive branch. Judge Burroughs issued an ex parte TRO in the funding case so quickly, that she could not have possibly even read the briefs. Judge Burroughs was also assigned the Harvard student visa case. How random? And she issued another immediate ex parte TRO. Not to be outdone, Boston Judge Talwani issued an immediate ex parte TRO in favor of Planned Parenthood, blocking the funding provisions of the One Big Beautiful Bill.

What is going on with Boston? Is there something in the Charles River?

Maybe there should be a rule that a TRO cannot be granted until at least enough time has elapsed so a reasonable person could actually read all the filings. They can even hang out at an all-night Denny's to finish their review. Sometimes when I receive a long email that I don't want to read, but I don't want the person to think I skipped it, I schedule a response for the following morning thanking the reader for the message. That approach at least creates the appearance that I took the matter seriously.

Today, Judge Burroughs issued a decision finding that in fact the Trump Administration threatened funding cuts would violate Harvard's rights under the First Amendment and Title VI. Critically, the court ruled that the case belongs in Boston, and not in the Court of Federal Claims. Where have I heard this before? Oh yeah, in DHS v. D.V.D. and in NIH v. APHA. Just yesterday, another Boston federal judge apologized for not knowing that emergency docket orders were precedential.

What did Judge Burroughs do? She took Justices Gorsuch and Kavanaugh to task for calling out lower judges in NIH v. APHA. Consider this remarkable passage in a footnote:

. . . This Court understands, of course, that the Supreme Court, like the district courts, is trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving. See Trump v. CASA, Inc., 145 S. Ct. 2540, 2567 (2025) (Kavanaugh, J., concurring) ("In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions."). Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for "defy[ing]" the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.

"Unhelpful" and "Unnecessary." I don't recall ever seeing a federal judge push back against a Supreme Court justice in an opinion. I think after years of rantings about the "shadow docket," even federal judges have decided that their superior body is a fair target. Judge Burroughs may as well have painted a bullseye in Red Sox red on the imminent stay application. At least Judge Reinhardt tried to keep things on the down-low so SCOTUS couldn't catch them all.

The lower court revolt continues. I'll repeat my conclusion from my Civitas column: John Roberts faces a far greater threat from a lower court revolt, than from President Trump, who has pledged allegiance to SCOTUS.

I attended Professor Mascott's confirmation hearing this morning. Several senators brought up Justice Gorsuch's concurrence. He struck a nerve. This issue is not going away.