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.

Comments

[Don Nico]

"This issue is not going away."
Revenge is a dish best eaten cold.

[Kleppe]

I thought it was getting back at someone

[LoganMankins]

Always enjoy Josh crying in another blog post

[Patrick Henry, the 2nd]

Yes we know you hate the truth

[LoganMankins]

Hope Josh sees this lil bro

[AtR]

Good points ... the entire revolt seems a bit insurrectiony, doesn't it?

[CountmontyC]

The SCOTUS needs to issue some contempt of court rulings against these judges that seek to defy SCOTUS rulings.

[David Nieporent]

That's, as the saying goes, not how this works.

[kotodama]

You dare to question the expertise of [checks notes] CountmontyC?

[CountmontyC]

Are you saying SCOTUS can't issue contempt of court rulings?

[Sarcastr0]

Against judges?

[CountmontyC]

Why would inferior court judges be immune to contempt of court rulings by SCOTUS?

[Sarcastr0]

Because there are plenty of other remedies available to the Supreme Court to direct lower court judges.

If we didn't need holding judges in contempt in school desegregation era, we don't need it now.

[CountmontyC]

So contempt of court rulings are an option just not your preferred option.
Personally I think a few judges held in contempt would be a good idea and teach them some much needed humility.

[Sarcastr0]

That's like saying dynamite is an option to lessen dandruff, just not my preferred one.

[LawTalkingGuy]

Also it’s never actually necessary because higher courts can reassign cases.

[CountmontyC]

That would be another option but does not preclude contempt of court proceedings which would serve quite well to other judges that they need to follow SCOTUS's decisions or face the consequences.

[LawTalkingGuy]

lol, that’s dumb as fuck. Also you know that under binding SCOTUS precedent, a defendant has a right to a jury trial for criminal contempt? You really think SCOTUS would want an expert defense attorney explaining to a jury how SCOTUS has done a 180 on the precedential value of interim orders?

Or if they’re trying to do civil contempt that can be purged by putting out a new order they like…do you think other judges are going to stand for their colleagues being jailed and fined? Plus, in civil contempt you’re supposed to use the least restrictive sanction aimed at obtaining a remedy for the aggrieved party. Fining and jailing isn’t restrictive compared to other options! Unless you want SCOTUS to break the law?

[CountmontyC]

Impeachment would be dynamite. Contempt of court is the final warning before impeachment.

[Sarcastr0]

Just because there's an even more extreme action doesn't render an extreme action on the table.
And impeachment at least has precedent.

You want a thing that's never been needed or used before to be deployed.

It's not clear it's legal, much less in the useful option space.

[CountmontyC]

There is no precedent for a court to issue contempt of court rulings?

[Sarcastr0]

I answered that 3 hours ago - not against it's own judges.

You're goin gin circles now.

[CountmontyC]

Sarcastro can you say why SCOTUS can't hold inferior court judges in contempt should they decide to do so? And remember who would ultimately decide the legality or constitutionality of those contempt charges.

[Sarcastr0]

Sarcastro can you say why SCOTUS can't hold inferior court judges in contempt should they decide to do so?

What lame burden switching.

It's established there are untried existing options, what you want has never been used before, is needlessly radical, and is of questionable legal authority.

Burden isn't on me to pick up the pieces and stomp on them to make extra sure your idea is bad.

[LawTalkingGuy]

The only people who need humility are SCOTUS justices who think that they can just up-end settled doctrine via unexplained or under explained emergency orders and solo concurrences.

They’re that shitty boss we’ve all had have wildly inconsistent expectations and are also terrible communicators but are so arrogant they blame their employees when things turn into a mess.

[CountmontyC]

I was given to understand that the SCOTUS is the Supreme Court of the USA and that the inferior courts were inferior and thus when the SCOTUS makes a ruling that even if the inferior courts do not like the ruling that they must follow the ruling. Are you saying that is incorrect?

[LawTalkingGuy]

If you want to take that view, you’ll have to concede that they’re bad at their job.

Traditionally that’s been when they issue fully briefed and argued merits opinions that are binding on the lower courts until explicitly overturned by SCOTUS. Now they’re saying that’s not totally true but aren’t really explaining why and expecting the lower courts to understand what they might do next instead of relying on prior precedent.

To the extent SCOTUS is “in charge” they’re very very bad at it. Again it’s a poor manager that blames employees for their shitty leadership ability.

[CountmontyC]

“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Justice Neil Gorsuch

That was in reference to inferior courts outright defying SCOTUS rulings

“This is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” wrote Gorsuch, who was Trump’s first nominee to the high court. (Kavanaugh was Trump’s second.) “When this court issues a decision, it constitutes a precedent that commands respect in lower courts.”

Just because you don't like the SCOTUS rulings, several of which were 7-2 or 8-1 rulings doesn't mean that they were wrongly decided or unclear and the fact that inferior courts tried to ignore the rulings and had to be slapped down multiple times suggests that those inferior court judges need large doses of humility.

[LawTalkingGuy]

lol that’s not what’s happening. What opinion was she defying? If it was an emergency order, she wasn’t defying anything because SCOTUS has never actually held those were precedent. Until they pretended maybe it was in the last few months.

Also if lower court judges routinely find ways around opinions, maybe the opinion was actually hot garbage and should be reassessed. If they make bad opinions that aren’t easy to follow, they’re bad at their jobs.

Again, this is on them. They want to be the overlords of the legal system and make it do they what they want? They need to do a better job. But asking a right-wing judge to take responsibility for anything is like, well, there isn’t really a better metaphor than the thing itself.

[CountmontyC]

Gorsuch believed there were precedents that were being defied.

“This is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” wrote Gorsuch, who was Trump’s first nominee to the high court. (Kavanaugh was Trump’s second.) “When this court issues a decision, it constitutes a precedent that commands respect in lower courts.”
Where is Gorsuch wrong?

[LawTalkingGuy]

Well no one joined that Gorsuch concurrence, for good reason too: he’s full of it. He’s taking the lower courts to task for defying orders he even concedes aren’t precedential on the merits and not following the “reasoning” of a 2 page per curiam interim order in a separate case. That’s not how it’s ever worked!

He’s complaining that other people noticed he sucks at his job.

[LawTalkingGuy]

Ah. I was mistaken, Kavanaugh did join the whiny Gorsuch concurrence.

[David Nieporent]

Are you saying SCOTUS can't issue contempt of court rulings?

No. I am saying that SCOTUS can't issue contempt of court rulings to judges who issue decisions that (purportedly) contradict precedent. Did SCOTUS issue an order to Judge Burroughs? No. So what would be the basis for contempt?

[CountmontyC]

Willful defiance of SCOTUS rulings as SCOTUS Justice Gorsuch stated

“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,”

Btw who would ultimately decide the legality/constitutionality if SCOTUS made such a contempt ruling?

[LawTalkingGuy]

What decision was she defying?

[Sarcastr0]

Did you notice you switched your goalpost from 'this is a good remedy' to 'a remedy is needed?'

I mean, you're wrong there as well [one Justice does not a Supreme Court make], but you've also changed goalposts.

[David Nieporent]

Willful defiance of SCOTUS rulings as SCOTUS Justice Gorsuch stated

A "ruling" is not an order. You can't be in contempt unless there is a court order. A court order directed at you. A court order directed at you that you then disobey without excuse. That's what contempt is.

[BrotherMovesOn]

Jesus, why don't they just do everything he asks?
Is that so hard?
He's the President!

[David Nieporent]

Judge Burroughs issued an ex parte TRO in the funding case so quickly, that she could not have possibly even read the briefs.

One thing that distinguishes MAGA like Blackman from normal people is a complete lack of shame. No matter how much someone makes fun of him for saying something obviously idiotic, he'll double down on it. In fact, as was discussed in that very thread, she had plenty of time to read the submissions.

[kotodama]

Surely the distinguished Centennial Chair of Constitutional Law at South Texas College of Law in Houston can remind us ignorant randos where in FRCP 65(b)(1) it requires parsing every last word on every last page of a brief before issuing a TRO?

[kotodama]

You have to admit Blackman is at least good for a laugh sometimes. He can't possibly argue the TRO was issued improperly. So he just goes with "But she missed 5 words on page 73 of the brief!!!"

[John F. Carr]

"Is there something in the Charles River?"

Traces of William Weld, who jumped into the river as a publicity stunt.

[ReaderY]

This case contained a First Amendment retaliation claim, which the cases the Supreme Court decided did not. It is an open question at this point whether the Federal Circuit handles all contract CASES - any case involving contracts goes to the Federal Circuit regardless of what the claims are - or if it only handles contract CLAIMS - so that claims that do not sound in contract, like the First Amendmwnt claims involved here, can still get handled in District Court.

Since the question is still up in the air, it is understandable that some district court judges would interpret the limits on their jurisdiction narrowly until specifically told otherwise.

Interpreting a Supreme Court ruling narrowly is not defying the Supreme Court. Conservative lower court judges did the same thing with liberal Supreme Court rulings all the time.

[Armchair]

"Interpreting a Supreme Court ruling narrowly is not defying the Supreme Court. Conservative lower court judges did the same thing with liberal Supreme Court rulings all the time."

Examples?

[LawTalkingGuy]

Not necessarily jurisdictional but, in June Medical, the 5th Circuit pretended that Whole Women’s Health and Casey didn’t exist.

California v Texas: Reed O’Connor and the 5th Circuit pretended that the dissent in NFIB v Sebelius was actually the law.

Sambrano v United States: the 5th circuit pretends that Sandoval and other decisions heavily disfavoring implied causes of actions and remedies from statutes (plus a centuries worth of remedies law) don’t exist so it could uphold the issuance of a preliminary injunction under title VII of a private company’s vaccine mandate if there are religious objections.

NetChoice v Paxton: 5th circuit scoffs at the plaintiffs for pointing to “Supreme Court doctrine” rather than “original public meaning.”

[Lee Hollaar]

It's the United States Court of Federal Claims, not the Federal Circuit. The CFC is a trial court with specific and generally exclusive jurisdication whose decisions can be appealed to the CAFC.
That jurisdiction is described in 28 U.S. Code § 1491 as "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." There are exceptions to that exclusive jurisdiction that aren't relevant here.
What the Supreme Court said was that because Congress created the CFC as a waiver of sovereign immunity, other courts should not try to find clever ways to get around the CFC's exclusive jurisdiction.
So, it is definitely not an open question whether a district court has the authority to hear these claims. The answer is no. Whether that district court judges like it or not.

[energizzer]

The jurisdiction of the CFC is not exclusive by way of 28 USC 1491. You can go search the word "exclusive" and see if its in there. Its not (well, technically it is, with respect to exclusive jurisdiction over claims involving the Tennessee Valley Authority-- Congress knew how to use the word "exclusive" but chose not to.). And that is not what SCOTUS held.

What SCOTUS held was that the APA's prohibition on hearing cases involving money damages applies in certain cases, but not all cases, in which the distribution of money is the result of the granting remedy. Its about interpreting the APA, not the Tucker Act.

[Lee Hollaar]

Maybe instead of "excluse jursidication" I should have been more precise and said "virtually exclusive jurisdiction" in cases such as these. The relevant statute for that statement is 28 U.S. Code § 1346(a)(2) which is the one about district court jurisdicion when the United States is a defendant.
It says district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, in a "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort..."
I suspect that the cases here are for contracts worth more that $10,000 total, and if so the district court has NO jurisdiction.

[dwb68]

As noted by Burroughs herself: "As relevant here, the Tucker Act vests jurisdiction in the Court of Federal Claims over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”

(emphasis mine).

It is not an open question. Burroughs twists her analysis into an unintelligible pretzel to obtain results she wants.

Easy to see how this will get tossed on appeal because it belongs in the court of Federal Claims, the long footnote and pre-rebuttal of Gorsuchs criticism notwithstanding.

[energizzer]

This case is founded on the APA, which specifically provides jurisdiction to the District Courts. The key clause, if this belongs in CFC, is the last one related to money damages. And the word "exclusive jurisdiction" is missing from your statutory excerpt, even though your entire argument is based on assuming the grant is exclusive. Oops.

But the way you know your reading is stupid is that, by your reading, any claim challenging any rule or agency action as exceeding statutory authority would have to go to CFC ("founded upon any Act of Congress or any regulation of an executive department"). The fact that APA suits have existed for decades in District Courts and are regularly reviewed by SCOTUS (which would have to analyze SMJ whether parties raised it or not) should immediately trigger you to recognize your reading as incorrect.

[dwb68]

No. The judge *decided* it was agency action. The government disputes that this is an agency action under the APA and like all the other times they will likely win on appeal.

[SRG2]

Blackman's sads are getting increasingly frequent.

[Stuart]

"How random?"
If you have something to say, say it. And of course, back it up. Or do just not have the guts or the facts.

[Please, Daivd, Seek Help]

Yeah it's sort of unclear what the argument is. The cases are not venue shopping, the administration is literally doing things that specifically affect Harvard, which is located in Cambridge, MA. There are nine judges that could hear the cases filed at the Boston court. All of them are Democratic appointees. (There are five Republican judges on the court, all on Senior status)

Of the nine judges:

- Judge Sorokin got the Brown University doctor deportation case (he ruled against the government in part) -- and also the birthright citizenship case (he ruled against the government there).
- Judge Kelley got the NIH indirect costs case (she ruled against the government)
- Judge Joun got the DEI funding case (he ruled against the government), and also the Education Department case (he ruled against the government)
- Judge Murphy got the DVD (South Sudan deportations) case (he ruled against the government)
- Judge Kobick got the transgender passport case (she ruled against the government)
- Judge Casper got the proof of citizenship voting order case (she ruled against the government) and also the Ozturk case (she ruled against the government)
- Judge Stearns got the FEMA case (he ruled against the government) and also one of the CHNV cases (he didn't rule because another judge had already done an injunction against the government in the same matter, but said he would rule against the government)
- Judge Talwani got the CHNV case (she ruled against the government) and also the Planned Parenthood Medicaid case (she ruled against the government).

So, again, literally every other judge in the Massachusetts district court has also got high profile Trump admin cases and literally all of them have ruled against the government, and most have done so at least twice. Yes, judge assignment is random. No, there's not a secret conspiracy to funnel cases to Judge Burroughs. Chemtrails also aren't real, fluoride isn't mind control, Obama wasn't using Jade Helm to take over Texas, there aren't 5G microchips in vaccines, the moon landing actually happened. The judge assignment mechanism is not rigged, it's just no judges in Massachusetts like Trump.

Blackman should just say what he means: Democrats are bad, liberals are bad, the woke wokes tried to cancel our Great President, the Greatest President, some are saying because of the very UNFAIR treatment against him he should be allowed to run for a third term, we're slouching towards Gomorrah, whatever.

There's a difference between being a highly partisan ideologue with strong opinions (worth an eyeroll, but whatever, we're all pricing that in by reading) versus endorsing toothless crackhead conspiracy theories about judge assignment because you're too statistically stupid to understand the pigeonhole principle and too egotistical to admit humility when talking about hard things like "counting the number of cases and dividing them by the number of judges". This is a "facts don't care about your feelings moment", the fact that you have anxiety about how the mean old liberals elites are undermining the rule of law with their illegal revolt doesn't change math. It's embarrassing. The first lesson my parents taught me is to conduct myself with dignity. I assume Blackman was raised by wolves.

[Lee Hollaar]

The point is very simple. The Supreme Court said that the Court of Federal Claims has exclusive jurisdiction in cases like this. It makes no difference where Harvard is located, since the CFC jurisdiction is nationwide.

[Please, Daivd, Seek Help]

Hi, please read the post you're replying to.

Great, you think the judge is wrong. My comment was about whether or not, as Blackman repeatedly insinuates, the judge assignment mechanism in Boston, once a case is filed, is non-random.

Do you think understanding the proper jurisdiction of the Court of Federal Claims helps you to make a determination on that point?

[energizzer]

"Cases like this" is doing a lot of work in your reply. SCOTUS said the CFC has exclusive jurisdiction over a case involving different parties and different claims, and seeking different relief. It also recognized CFC jurisidiction is not exclusive in other cases, even when payment of money will be the result.

Whether this case is "like" the SCOTUS case where CFC jursidiction was exclusive, or "like" the SCOTUS case where CFC jurisdiction was not exclusive, is the key. And because there was no reasoning in the (one singular) case finding CFC jurisdiction exclusive, its not possible to actually make that determination.

[Stephen Lathrop]

Please, Daivd, Seek Help — Wolves? I know wolves. I have watched wolves. I have camped among wolves in the wild. I understand wolves better than I understand law. Wolf society is more insistent on respect for dignity than MAGA is.

The problem with the SCOTUS majority is a problem for the law, but it is not a legal problem. It is a MAGA problem. If they somehow encountered this MAGA problem in the wild, wolves would piss on it, to assert their own dignity.

[Please, Daivd, Seek Help]

The people who are mad at the Supreme Court have the following demand: could you please write like, uh, like 3 more sentences explaining wtf you want us to do because we can't read your mind.

The people who are defending the Supreme Court have the following demand: lower court judges should be able to psychically understand whether or not the Supreme Court will distinguish two similar cases or not, and if they cannot do so with perfect accuracy, they should defer to the Trump Administratio's interpretation.

The text quoted exemplifies this. The judge raises an obvious point: there's a precedent that's good law. That precedent seems to be softly being overruled. The court hasn't confirmed it is overruled. The court hasn't distinguished the cases where it's good law from the cases where it isn't. All of the lower court judgments that apply the precedent seem to do so faithfully and with an effort to follow it. The lower courts can "correct" this state of affairs only by giving up on their job and just punting; the Supreme Court can correct this state of affairs at any time it chooses. To be clear the Supreme Court has no obligation to correct things, they can choose what to say or not say. But if they choose to not say anything, they can't then turn around and demand obediance.

And by the way, the Trump administration used this exact argument with respect to following lower court judgments -- when the initial foreign aid cuts came down, the judge and the government went back and forth like 10 times with the government saying "we're trying to follow your order but it didn't specify what to do in this case or that case" and the judge, who easily could have said "here's what you need to do" instead said "I'll leave it to you to figure out what to do".

[Lee Hollaar]

The Supreme Court wrote enough to say that the Court of Federal Claims has exclusive jurisdiction of the matter, so it was granting a stay of the district court order because it was likely that the government would win on appeal of the order for that reason.
How many sentences do thou think that should take?

[Please, Daivd, Seek Help]

Well, I said 3 in the comment you're replying to, so I'll go with 3? You seem to think you just did it in 1, maybe you're right.

The footnote the judge wrote says the following (citations omitted):

> The Court is mindful of Justice Gorsuch’s comments in his opinion in APHA and fully agrees that this Court is not free to “defy” Supreme Court decisions and is, in fact, “duty-bound to respect ‘the hierarchy of the federal court system.’” Consistent with these obligations, this Court (and likely all district courts) endeavors to follow the Supreme Court’s rulings, “no matter how misguided [it] may think [them] to be.” That said, the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved. California was a four-paragraph per curiam decision issued in the context of a stay application. It cited Bowen as good law, stated that the Tucker Act gave the Court of Federal Claims jurisdiction over contract claims against the federal government, and then stated that the district court likely lacked jurisdiction “to order the payment of money under the APA,” without purporting to explain how the case was distinguishable from Bowen or other related, longstanding precedents... Then, in APHA,... again, provided little explanation as to how Bowen, which the controlling concurrence again cited as good law, id. at *2, applied or was distinguishable.

Here are two possible ways you could respond to this:

> Bowen is no longer good law.

or

> Bowen is good law but per California and AHPA, the recent cases are distinguished because [ABC]. Judges should look for [Factor X] when deciding if Bowen or AHPA control future cases.

Both of which would satisfy the judge's request. The judge is literally saying that the court either needs to repudiate Bowen or distinguish Bowen from things that say the opposite thing from Bowen and are newer but less explained.

[energizzer]

Where did the Supreme Court say CFC has exclusive jurisdiction over claims that agency action to revoke grants would violate the first amendment?

They could have said it in one sentence. Go find it.

[Longtobefree]

" . . . working to find the right answer in a rapidly evolving doctrinal landscape . . . "

Silly me.
I thought the courts were to assure the laws were followed as written.
No evolving required.

[LawTalkingGuy]

SCOTUS sucks at its job. A big part of their job is to use sound and thorough legal reasoning to resolve unsettled and contested legal questions in the lower courts so that application of the law is uniform. They’re supposed to be giving meaningful guidance to lower courts on how they should be resolving cases and applying legal rules. And when SCOTUS starts contradicting its prior rulings through unexplained or minimally explained orders or increasingly whiny concurrences, they and Josh shouldn’t fault the lower courts for taking different approaches. It’s their job to actually articulate and explain what the uniform rule is. They’re lashing out at everyone else for their own obvious failure.

SCOTUS and Josh fail to understand that SCOTUS isn’t actually the end-all-be-all of the constitutional structure generally or even the federal judiciary. They’re part of a system. A powerful and important part, yes, but still part of a system. Lower courts, litigants, and other governmental bodies can still exercise power in this system.

If they want lower courts to treat their emergency orders as binding precedent (something they have routinely said isn’t a thing), they actually need to say that in a full opinion with full argument on the subject.

If they don’t want lower courts to keep applying a 90 year old precedent they haven’t actually overturned, they actually need to overturn it.

Apart from the politics or merits, they simply suck at their job.

[JoeFromtheBronx]

You noted above that "Well, no one joined that Gorsuch concurrence." Kavanaugh joined it.

https://www.supremecourt.gov/opinions/24pdf/25a103_kh7p.pdf#page=8

[LawTalkingGuy]

Damn you’re right. Thanks for the correction!

[JoeFromtheBronx]

Steve Vladeck and company have criticized the shadow docket.

"Ranting" is often more applicable to our gracious host.

Lower court judges are getting tired of the Supreme Court, see LawTalkingGuy's comment, as they are being attacked for doing their jobs:

Judges are increasingly targeted, with some facing bomb threats, “swattings” and other harassment. Judges especially involved in high-profile cases — and their families — have reported receiving violent threats.

In return, JB makes snide comments about pizza deliveries (in the name of a judge whose child was killed).

https://www.nbcnews.com/politics/supreme-court/supreme-court-trump-cases-federal-judges-criticize-rcna221775

[JoeFromtheBronx]

The pizza thing is even worse ...

A judge whose son was murdered by a disgruntled lawyer posing as a pizza deliveryman voiced anguish that the crime has spawned a spate of copycat threats against other jurists.

Esther Salas, a US district judge for New Jersey, fought back tears on Thursday after being asked to respond to a trend of judges receiving home pizza deliveries with the name of her late son attached as a means of intimidation.

https://www.theguardian.com/us-news/2025/aug/01/us-judge-esther-salas-threats

[LawTalkingGuy]

Unless I missed something I noticed he hasn’t brought that up in awhile? Maybe someone talked to him and either:

1) shamed him into realizing how shitty he was being;
2) pointed out that reminding people that a Trump-loving right-wing MRA kook murdering a liberal judge’s son is actually not great for his thesis that conservative judges are under a unique threat.

[LawTalkingGuy]

Interestingly, the last time Josh mentioned the pizzas (without context) appears to be it’s the beginning of June of this year. Perhaps a later event that month reminded him that it’s not a good look to scoff at the danger of right-wing murderers.

[JoeFromtheBronx]

Perhaps.

[energizzer]

NIH v APHA was a 4-4-1 decision. Without any majority opinion, the precedent from that opinion is the "narrowest" ground for the holding (although even this is questionable). The 4 judges in favor of the stay did not write a opinion (ACB wrote a concurrence, as did Gorsuch and Kavanaugh)... so to say any of the opinions there are clearly precedent is highly debatable

[dwb68]

Judges anonymously criticize Supreme court..this should end well.
How dare the Supreme Court call out our shoddy work and overturn us!

https://www.foxnews.com/politics/federal-judges-anonymously-criticize-supreme-court-overturning-decisions-emergency-rulings

The judges who offered their Anonymous opinion should be impeached. Not for having opinion, or voicing it, but for being too cowardly to put their name on the record

[Sarcastr0]

How do you think it will end?

[LawTalkingGuy]

If the court was inclined to call out shoddy work it would issue detailed merits opinions taking apart the decision below. As it happens, they have taken to issuing short unexplained orders overturning the detailed analytical work the lower court did without explaining what was incorrect. Often because they can’t! They’re just exercising power in a stupid and arbitrary way and getting mad that the lower courts don’t like that. A supreme court that is at odds with the lower courts on a wide variety of topics and doesn’t engage with them but simply demand everyone get with the constantly shifting program is bad at its job. But we’re in the error of stupid and whiny governance by stupid and whiny people and obviously SCOTUS isn’t immune.

[dwb68]

That or it only takes a few pages to expose the shoddy work. Reams of words do not a persuasive opinion make. Often "long detailed analysis" is nothing but multisylabbic bullshit.

Caetano v Massachusetts was a masterful, short per curium opinion. "We already rejected those three arguments and found them specious, go back and try again."

In this case, all the Supreme Court needed to say was, "No. See the Tucker Act." Why write pages and pages when a few well done paragraphs will do?

[LawTalkingGuy]

Because that’s their job?

[loki13]

Anyway, there seems to be a lack of legal-like substance on this blog. I thought I would briefly think about the usual BS being blustered by the rubes and try to take it seriously as a legal question.

Question presented: Can the Supreme Court hold a district court in contempt for (supposedly) not following precedent?

Brief answer: No. The Supreme Court cannot. There are several reasons for this. The first is a matter of simple precedent- the Supreme Court has only once, in its entire history, used the inherent power of contempt. So there is a case (you can all look at it) discussing the Supreme Court's jurisdiction - US v. Shipp, 203 US 563 (1906).

If you pay attention, the key point is that you to be in contempt, you have to defy a court's order. I don't want to go all legal-y on you, but defying a court's written order (in that case, that custody be retained pending appeal- and the Sheriff and others conspired to break the prisoner out in order to hang the prisoner pending appeal .... yeah, you can probably guess something about the underlying issues).

A written opinion (precedent) is binding by vertical stare decisis, but is not the same as a court's order. Now, it would be possible for the court to make an order (such as a writ of prohibition or in a mandate) and that might be construed in some circumstances as an order that a lower court would disobey to the extent that it would merit contempt proceedings.

But again, it's not just, "You're in contempt." There would be a process (a show cause order, etc.) to follow.

Anyway, the answer is - no. You're welcome. This has been a long answer to a stupid assertion.

[LawTalkingGuy]

On the other hand, there were long-settled expectations regarding how emergency orders from SCOTUS worked. Until one day there weren’t. So while you’re correct, it might need the added caveat that we’re in the “lol nothing matters” era and there is actually no limit to how stupid things can get.

[loki13]

Yes ... ish. I mean, I could further detail why the premise is stupid, but I won't.

There is a lot of LOL-law happening, but this would be closer to a probate judge in a probate case convicting someone of murder, if you catch my drift. It's a nonsensical type of issue AFAIC.

Again, don't get me wrong- it's not that I don't see all the LOL-law. It's that "Ima issue a show cause order on a lower court because I think the lower court didn't follow the law correctly BEFORE THE CASE EVEN CAME BEFORE US" is a whole 'nother ballgame.

There is, quite literally, no ability to issue the order.

[LawTalkingGuy]

My lawyer brain says you’re absolutely right. But my history brain says that whether an institution (or person) has the power to do something depends on whether 1) they try to do it 2) get away with it. And that legal fictions can be used to remove legal barriers. The history of the common law is also the history of common law courts making stuff up to expand their jurisdiction like the King’s Bench with the Bill of Middlesex or Assumpsit. And when you’re talking about a “supreme” court that can claim nebulous “inherent” powers it’s not beyond the realm of possibility that something like this develops. Particularly if you have an executive enforcement arm willing to oblige the fiction and aid the exercise of power in a new way.