The rebuke, which was joined by Justice Brett Kavanaugh, flipped the narrative that it is Trump who has pushed legal boundaries with his flurry of executive orders and support for impeaching judges who rule against him. A wave of legal conservatives took to social media to tout Gorsuch’s warning.
“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.)
Other conservatives have been just as harsh this year. Justice Samuel Alito in March accused a federal judge in another case involving a Trump policy as committing an “act of judicial hubris” and “self-aggrandizement of its jurisdiction.”
The Supreme Court has been consistently siding with Trump on the emergency docket for months, including in high-profile cases dealing with immigration, spending and the leadership of independent agencies. And Trump has won even in cases in which there are serious arguments that his administration defied a lower court, said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“Gorsuch’s opinion in the NIH funding case is perhaps the most direct articulation yet of why — because the justices seem more concerned with lower courts correctly reading the tea leaves in their (often unexplained) rulings than with the executive branch behaving properly before the rest of the federal judiciary,” Vladeck said.
In a biting dissent in the research grant decision on Thursday, liberal Justice Ketanji Brown Jackson described the result as “Calvinball jurisprudence,” in reference to the popular “Calvin and Hobbes” comic.
“Calvinball has only one rule: There are no fixed rules,” Jackson wrote. “We seem to have two: that one, and this administration always wins.”
Trump’s attacks on federal courts have subsided somewhat since the spring, when he repeatedly took to social media to rail against lower court judges and also privately complained about some members of the Supreme Court whom he appointed during his first term. But many of the president’s allies continue to work the refs and misstate the judiciary’s role — reflexively chalking losses in court up to politics.
“We will not fall to rogue judges,” Trump’s former personal lawyer Alina Habba told Fox News last week after a federal judge ruled that she was not legally serving as the acting US attorney for New Jersey. “We will not fall to people trying to be political when they should just be doing their job — respecting the president.”
Critics say it is Trump who is to blame for the tension between the executive and judicial branches, not only because of his rhetoric but also because of how the Justice Department has handled a number of high-profile cases.
In a scathing dissent in an emergency case earlier this summer, Justice Sonia Sotomayor accused the court of “rewarding lawlessness” by siding with Trump in one of those cases.
“This is not the first time the court closes its eyes to noncompliance, nor, I fear, will it be the last,” Sotomayor wrote, dissenting from the court’s decision to allow the administration’s deportations of certain migrants to countries other than their homeland. “Yet each time this court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
Sotomayor and Jackson, both liberals, are the only two on the Supreme Court who have served on district courts, where judges often take the initial stab at applying precedent to new litigation. Most of the other justices were formerly appeals court judges, where they review those first attempts by the district courts.
Gorsuch’s sharp lines — not to mention Trump’s winning streak at the high court — suggests that at least some of the justices believe that some lower courts are overreacting to the administration’s moves.
