The Volokh Conspiracy
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What Do We Make Of The Boston Federal Judge Who Apologized For Not Knowing Emergency Docket Orders Are Precedential?
Judges who are unfamiliar with the workings of the emergency docket should be more cautious in granting emergency relief against the federal government.
Judge William G. Young of the District of Massachusetts presided over the case that would become NIH v. APHA. In this case, a majority of the Court held that a suit over cuts to funding belongs in the Court of Federal Claims. This ruling followed directly from an earlier ruling, California v. Texas. Justice Gorsuch wrote a sharp concurrence, chiding Judge Young, and other judges, for defying Supreme Court orders. (I discuss this history in my Civitas column.) While writing this piece, I speculated aloud what could possibly be motivating judges who took actions that were inconsistent with the Supreme Court's emergency docket rulings.
Judge Young, to his credit, has shed some light on his thinking. Regrettably, these insights cast even more doubt on the Judge's decision-making authority.
The New York Times offers this account:
Judge Young said on Tuesday that he had not realized he was expected to rely on a slim three-page order issued with minimal legal reasoning in April to his case dealing with a different agency.
"Before we do anything, I really feel it's incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States," said Judge Young, who was appointed to the bench by President Ronald Reagan in 1985.
"I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer," he added.
…
"I have served in judicial office now for over 47 years," he said. "Never before this admonition has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention."
He went out of his way to stress that it was never clear to him that the court's emergency ruling in the education case represented its thinking in other instances of federal grants the Trump administration has slashed since January.
"I simply did not understand that orders on the emergency docket were precedent," he said. "I stand corrected."
After delivering the apology, Judge Young met with lawyers out of earshot of the public, and eventually ended the hearing without saying more. He scheduled a follow-up hearing on Thursday to determine how the case should proceed.
I believe this apology is sincere and heartfelt. Judge Kozinski once said that being a federal judge means never having to apologize. Judge Young could have said nothing, and no one would have asked him to. Kudos to Judge Young.
But there is a far bigger problem: how could he have made that mistake? Maybe during the early days of the COVID pandemic, it could be argued that the precedential value of shadow docket orders was unclear. But Chief Justice Roberts's concurrence in South Bay become a super-precedent! (I found at least one order from Judge Young in 2021 that cited South Bay and Roman Catholic Diocese. Delaney v. Baker, 511 F. Supp. 3d 55, 72 (D. Mass. 2021) (Young, J.)).
In 2021, Judge McFadden (D.D.C.) co-authored an article on the precedential value of shadow docket rulings. In July 2022, I wrote that West Virginia v. EPA cited as precedents two other shadow docket rulings Alabama Association of Realtors v. HHS and NFIB v. OSHA. And since then, there has been a pretty consistent stream of authorities from the Supreme Court indicating these orders were precedents.
Most recently, DHS v. D.V.D. and Boyle expressly chastised lower courts for not following shadow docket precedents. D.V.D. rebuked Judge Brian E. Murphy, one of Judge Young's colleagues on the District of Massachusetts. Was Judge Young not even aware of that remarkable reversal of his colleague?
Moreover, before Judge Young, the Department of Justice vigorously argued that California v. Department of Education was a precedent. Here is how the emergency application described the record:
When the government pointed out that respondents' challenges to those grant terminations belong in the Court of Federal Claims under California, the district court recognized with serious understatement that California was a "somewhat similar case." App., infra, 221a. Yet the district court dismissed this Court's ruling as "not final" and "without full precedential force," "agree[d] with the Supreme Court dissenters," and "consider[ed] itself bound" by the First Circuit ruling that California repudiated. Ibid.; see id. at 229a (California "is not binding on this Court").
So it is not just the case that the Judge was unaware. Judge Young listened to the government's (correct) arguments, failed to do any additional research on the issue about the precedential value of shadow docket orders, and still issued an injunction against the government. To be sure, there is an academic debate on this issue, but that debate requires knowing both sides. Judge Young didn't even know there was a debate!
The problem here is not Judge Young's sincere mistake. Rather, the trouble arises from his willingness to enter broad relief without conducting sufficient research. Or more precisely, his law clerks were unable or unwilling to advise him otherwise. I find persuasive David Lat's description of law clerks as general counsels, and not associates. They have an obligation to advise their judge in on some fairly obvious Supreme Court precedent. And they failed to do so.
Judge Young turns 85 later this month. He has had a distinguished judicial career spanning half a century. A lot has changed since he graduated law school in 1967. Perhaps this apology provides a moment to reconsider where his talents and efforts are best suited.
At a minimum, this story should be a cautionary tale to the entire judiciary: judges who are unfamiliar with the workings of the emergency docket should be more cautious in granting emergency relief against the federal government. Perhaps readers of this blog take for granted that judges follow the Court as they do. It's not the case. Many federal judges never read new Supreme Court decisions. Maybe they'll ask their clerks to summarize it. Maybe they'll just wait for briefs to come in. Maybe they'll never read the briefs. But if you are such a judge, and you are presented with an emergency petition, you better be damn well sure you are up to speed before granting an injunction, especially an ex parte TRO. It is not the plaintiffs' job to provide a balanced approach to the law--that is what the adversarial process is for.
But you know which Article III nonagenarian still has a firm grasp of Supreme Court doctrine? Judge Pauline Newman. But she was just suspended for another year by the Federal Circuit, which is apparently waiting for her to die. She has nothing to apologize for.
One final note: the Times and other outlets make a point of saying that Young was a Reagan appointee. This point is irrelevant. President Reagan appointed Judge William G. Young to the federal bench in Boston in 1985. To be clear, the Harvard grad's blue slips were signed by Ted Kennedy (ranking member of the Senate Judiciary Committee) and (freshman) John F. Kerry. Young became eligible for senior status in 2005. In March 2021, only a few months after the inauguration, Young notified President Biden that he would take senior status. If there is any conservative indicia in Judge Young's four-decade tenure on the bench, I can't find it. Just another data point to prove that we shouldn't put any stock in the judicial philosophy of a Republican appointee in a deep blue state like Massachusetts or Hawaii.
