136. Setting the Record Straight on the Anti-Trump Injunctions

President Trump and his supporters are mounting increasingly noisy attacks on lower-court judges. But their claims combine shameless hypocrisy with shameful distortions of the facts.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the third episode dropping last night. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):

I already posted last Friday about the biggest Supreme Court-related news of the week (the six pending emergency applications from the Trump administration). Thus, I thought I’d use today’s issue for something different—taking a more holistic look at the public discourse surrounding the role of the federal courts vis-a-vis the current administration. With Speaker of the House Mike Johnson now suggesting that Congress should pursue legislation to simply “eliminate” those district courts that have ruled against the executive branch, and with both the House and Senate Judiciary Committees set to hold hearings this week on nationwide injunctions (at the latter of which I’ll be one of the witnesses), it seemed worth providing some actual data with which to analyze some of the claims out there about how many rulings against the Trump administration we’re seeing; in which courts these cases are being brought; and which judges are being assigned to hear them / are ruling against the executive branch.

To spoil the punchline: unlike during the Biden administration, when challenges to federal policies were steered to a small handful of carefully selected (and Republican-appointed) district judges in the Fifth and Eighth Circuits, these cases are being brought in a far broader range of district courts and before a far broader (and more random) assortment of federal judges. And although judges appointed during the first Trump administration have been especially reticent to rule against the federal government to date, there are plenty of examples of adverse rulings by judges appointed by other Republican presidents.

TL;DR: The data strongly suggests that the cause of this unprecedented flurry of judicial activity is neither the judges nor the courts; it’s the policies they’re reviewing.

But first, the news.

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On the Docket

The Court handed down two rulings in argued cases last week:

1. United States v. Miller: I could try to explain this technical bankruptcy case in detail, or I could just tell you that Justice Jackson wrote for an 8-1 majority (with only Justice Gorsuch dissenting) in siding with the federal government in a dispute over the scope of a statutory waiver of the federal government’s sovereign immunity with respect to certain claims related to bankruptcy proceedings. You’re welcome.

2. Bondi v. Vanderstok: For a 7-2 majority, Justice Gorsuch upheld a Biden-era rule from the Bureau of Alcohol, Tobacco, and Firearms subjecting kits to make (most) “ghost guns” to the ordinary rules governing firearms sales—reversing the Fifth Circuit (a theme that is likely to repeat a fair amount over the next three months). Indeed, as in a number of other cases coming from the New Orleans-based appeals court, the justices had already signaled where they were heading when they voted 5-4 in August 2023 to grant an emergency application from the Biden administration to keep the rule in effect. The only real surprises here are the votes of Justices Gorsuch and Kavanaugh—both of whom had dissented from that August 2023 order. (Gorsuch’s 2023 vote is one of the examples of him voting in favor of universal relief—which seems even more difficult to defend given that he sided with the government on the merits.)

The only other action out of the full Court last week was Monday’s regular Order List—which included no new grants of review. In separate statements respecting the denial of certiorari in Franklin v. New York, both Justice Alito and Justice Gorsuch suggested that the Court consider revisiting at least some of the doctrine that has emerged under its 2004 ruling in Crawford v. Washington—in which Justice Scalia’s majority opinion had adopted a reinvigorated interpretation of the Sixth Amendment’s Confrontation Clause.

Turning to this week, we expect a regular Order List at 9:30 ET today, followed at 10:00 ET by the beginning of the second week of the “March” argument session. And the Court is also planning to hand down one or more decisions in argued cases this Wednesday at 10:00 ET. We may also see movement on at least some of the pending emergency applications from the Trump administration; as I suggested on Friday, the case involving cutoffs of Department of Education grants may be the first one that’s ripe for a ruling (the response to that application has already been filed). It’s also possible we start to see emergency applications from those challenging Trump administration policies (e.g., in the DOGE case from the Fourth Circuit and the NLRB/MSPB firing cases from the D.C. Circuit). But it’s hard to imagine we’d see rulings on those this week.

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The One First “Long Read”:
Straightening the Record on Anti-Trump Rulings

Before turning to the data that my superstar research assistant Alyssa Negvesky and I collected (and Alyssa collated), a note on our methodology: Our specific focus is not on every lawsuit filed against the federal government in the last 10 weeks. Rather, it is on the subset of cases in which there has been a request for a temporary restraining order (TRO) or a preliminary injunction (PI) against a policy undertaken or proposed by the Trump administration since January 20, 2025. There are plenty of cases against the government either (1) relating to pre-January 20 policies; or (2) not seeking this kind of interim relief. But insofar as the public criticisms are about the unprecedented flurry of TROs and PIs, it seems worth focusing on this subset.

Within that framing, we’ve identified 67 cases (as of last Friday night) in which district courts have ruled either in favor of or against preliminary relief. For counting purposes, when multiple lawsuits produced a single, consolidated ruling, we count that as only one. And when a court has ruled on both a TRO and a preliminary injunction, we likewise count that as one case (and as a “grant” if the court granted a TRO or a PI). Overall, district courts have granted some type of preliminary relief in 46 of those 67 cases (68.7%). To jump to the bottom line, those 67 rulings have come from 51 different district judges appointed by seven different presidents sitting in 14 different district courts across eight circuits. (The grants have come from 39 different judges appointed by five different presidents and sitting in 11 different district courts across seven circuits.)

Against that backdrop, here are some more specific responses to some of the claims that are floating around out there:

1. Are we seeing more rulings against Trump than against his predecessors?

Yes, but this answer has to be put into context. Last week, President Trump signed his 100th executive order—in only 65 days in office (as of last Wednesday). As that linked CBS story notes, the previous record for executive orders during a new President’s first 100 days was the 99 signed by President Franklin D. Roosevelt in 1933. President Biden, in contrast, signed only 37 orders during the same time period (and Trump signed only 17 during the first 65 days of his first term). In other words, we’ve seen a much greater amount of action by Trump over the first 10 weeks of his presidency—which would correlate to more judicial challenges even if those actions weren’t as legally controversial as so many of them have been. Yes, courts have been busier than their predecessors, but the White House has been even busier—a fact it has been trumpeting rather loudly. (Congress, meanwhile has not; since January 3, it has enacted a total of four statutes—even though at least some of these legal challenges could surely be mooted by statutes clearly providing the President with the authority he claims he already has.)

2. Are the plaintiffs in these cases “judge-shopping”?

No. With one fleeting exception,¹ none of the 67 lawsuits we found in which interim relief has been sought against Trump administration policies have been filed in “single-judge divisions” (where a case has a 100% chance of being assigned to a specific judge). This kind of “judge-shopping” is distinct from “forum-shopping,” in which litigants with options pick where to file based on various factors, perhaps including the overall composition of the local bench. At least with regard to finding a way to bring a case so that a specific, hand-picked judge will be assigned to decide it, we haven’t seen any of those in the cases in our dataset.

That absence is in noticeable contrast to a lawsuit the Justice Department itself filed just last Thursday—seeking a declaratory judgment that it should be allowed to terminate collective bargaining agreements between eight agencies and dozens of affiliates of the American Federation of Government Employees. Where did the Trump administration file this nationwide suit? In the Waco Division of the Western District of Texas—where it had a 100% chance of being (and has been) assigned to a Trump-appointed district judge, and where any appeal goes to the Fifth Circuit. It’s the height of irony that the only judge-shopping we’re seeing in Trump-related cases is … from Trump.

Indeed, the overwhelming majority of cases in our dataset were filed in courts in which the maximum chance of drawing any specific judge is less than 15%. That’s a dramatic shift from litigation against the Biden administration—during which an many (if not most) of the suits challenging nationwide policies were brought in a handful of district courts, including both single-judge divisions in Texas and Louisiana and other courts in which the chances of drawing specific judges were 50% or higher. Although requests for “nationwide” relief have been an increasingly common feature of litigation against the federal government since late in the Obama administration, something about nationwide relief hits differently when it’s coming from multiple randomly assigned judges spread across the country (like the multiple nationwide injunctions against the birthright citizenship executive order), or even a single randomly assigned judge in the nation’s capital, versus from a judge in the 24th-largest city in Texas whom the plaintiffs specifically chose to hear the case.

One other relevant data point on this: One of the only federal district courts in a “blue” state that even has single-judge divisions is the District of Massachusetts—which has single judges in the “Western” (Springfield) and “Central” (Worcester) divisions. But on February 11, that court quietly changed its case assignment rules so that any suit seeking nationwide relief against the federal government and filed in one of those divisions will be randomly assigned across all of the district court’s 20 judges. In other words, the Massachusetts district court had the opposite reaction to the Judicial Conference’s March 2024 anti-judge shopping policy from the reaction we saw from the Northern District of Texas—to avoid the possibility of having its case assignments manipulated by litigants, rather than to lean into it.

3. Are the plaintiffs in these cases forum-shopping?

Yes, but again, to a lesser degree than we saw from 2021-25. The 67 cases Alyssa and I identified have been filed in 14 different district courts across eight circuits. The clubhouse leader is unquestionably the D.C. federal district court (where 31 of the 67 cases have been filed).² But no other district court is responsible for more than 1/6 of the cases that have thus far produced rulings on TROs or PIs. (And it’s hard to get too exercised about suing the federal government in the forum in which … the federal government is headquartered.)

That’s a rather striking contrast to lawsuits challenging Biden administration policies, the majority of which were filed in five district courts across two circuits (the Fifth and Eighth). To help underscore this point, the federal government’s six pending emergency applications in the Supreme Court are challenging rulings by six different judges in five different district courts in four different circuits. The location of those courts definitely supports claims of forum-shopping. But the number of different courts drives home how much more the “shopping” has been distributed both geographically and ideologically than what was true as recently as 10 weeks ago.

4. Which judges are ruling against Trump in these cases?

One of the most noxious claims out there is that the rulings against President Trump are coming only from “rogue,” “far-left” judges. Leaving aside the extent to which not all judges have the same ideological commitments as the president who appointed them (and that a ruling isn’t “rogue” just because you don’t like it), the data is, once again, to the contrary. Roughly one of every five rulings halting a Trump policy (9/46) has come from a Republican-appointed district judge—including judges appointed by President George W. Bush and President Reagan. (We’ve also seen visible examples of Republican-appointed circuit judges voting against DOJ requests to block district court rulings, like Judge Henderson in the Alien Enemy Act case, but our focus has been on the district courts.)

I don’t mean to overstate the point; the vast majority of rulings against Trump (37/46) have come from judges appointed by Democratic presidents. But those judges are also responsible for 10 of the 21 denials of preliminary relief in our dataset. Because of the forum-shopping described above, more of these cases overall are ending up before Democratic-appointed judges—which impacts both the numerator and the denominator.

To help make clear how the party of the President who appointed the relevant judge is not driving these rulings, of the 20 cases in our dataset that were assigned to Republican-appointed district judges, nine of those saw grants of a TRO and/or PI. Thus, even looking at the cases before Republican-appointed district court judges alone, plaintiffs have still obtained preliminary relief in 45% of the cases in which they’ve sought it. That’s … high.

One last point on the data: The only subset of appointees whose rulings have been uniform are district judges appointed by President Trump. Of the 67 cases we identified, eight have been assigned to judges Trump appointed between 2017 and 2021. In all eight of those cases, the district court denied interim relief. Whatever that says about Trump appointees, note what it says about judges appointed by previous Republican presidents: Of the 12 cases in our dataset assigned to such judges, nine of them have produced a TRO against the challenged policy, a PI, or both. I understand that there are those to whom you literally can’t be a Republican if you do anything to oppose Trump. But any claim that judges like John Bates, Richard Leon, and Royce Lamberth are liberal squishes betrays the claimant’s utter lack of seriousness.

5. Are judges deliberately insulating their rulings against appellate review?

Finally, we’ve also seen complaints that district judges in these cases are taking steps to deliberately insulate their rulings from appellate review—including by issuing (usually un-appealable) TROs instead of (appealable) preliminary injunctions. Frankly, this claim bespeaks a fundamental misunderstanding of how time-sensitive civil litigation works. TROs are supposed to come first, and are supposed to be limited in duration—which is a big part of why they’re not generally subject to appeal. We haven’t identified a single case in which a district court extended a TRO more than once—or has otherwise done anything inconsistent with the provisions of Rule 65(b) of the Federal Rules of Civil Procedure. If anything, the dramatic effects of many of the Trump administration’s policy initiatives (along with the government’s deceptive litigation behavior)³ have provided unusually strong arguments in favor of TROs—especially in contexts in which, without urgent relief, the government may be able to take actions that irreparably and irrevocably harm the plaintiffs.

But perhaps the best evidence against this claim is that even some of the more widely criticized TROs have not actually been insulated from appellate review; in the Alien Enemy Act case, for example, the D.C. Circuit held that it did have jurisdiction to stay Chief Judge Boasberg’s TROs, even though it declined to do so.⁴

The only (relatively) new development we’ve seen in these cases is a handful of district courts issuing “administrative stays” at the very outset of litigation—prior to their issuance of a TRO. My own view, as I’ve suggested previously, is that the power of district courts to issue such rulings is not well established. But, as relevant here, none of the pre-TRO orders entered in those cases lasted more than a couple of days—in rather striking contrast to the “administrative stays” that a Texas district judge used last year to keep a Biden administration immigration policy frozen on a nationwide basis for more than two months. The point is not that two wrongs make a right; it’s that the behavior by the judges in the cases Alyssa and I have identified was neither invented, nor even expanded, specifically in response to Trump.

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As is always the case with data respecting court decisions, we should be careful about making too much out of this quantitative information. Not all cases are equal, and, in any event, these are still relatively small (and rapidly evolving) datasets.

That said, there have been enough lawsuits filed against the Trump administration, and enough rulings on TROs and PIs, from which it is possible to at least provide some receipts in response to some of the more outlandish claims being made both by the President himself and by his supporters within and without the government. The reality is that the pushback against Trump policies from the federal courts to date has come from a remarkably large and diverse cohort of federal judges—with respect to where they sit and by whom they were appointed.

And the one place in which these lawsuits have been especially concentrated is the forum in which it makes the most sense to sue the federal government—the D.C. federal district court, where judges appointed by Republican presidents have been almost as active in blocking Trump initiatives as their colleagues appointed by Democratic presidents.⁵

There’s little question that the plaintiffs in these cases are still making strategic choices about where to file their lawsuits—just as the government is trying to have as many of these cases end up in the Fifth Circuit as possible. But the filing choices by plaintiffs in these cases are well within the mainstream of ordinary litigation behavior—far more so than what we saw on a regular basis during the Biden administration.

At some point, if this many different judges in this many different courts appointed by this many different presidents are blocking this many policies promulgated by the same president, we ought to be able to agree that the problem is the policies—not the judges.

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SCOTUS Trivia:
The Longest-Serving Not-Senior Associate Justices

Tomorrow, Justice Alito celebrates his 75th birthday. Thanks to Justice Thomas, however, Alito is still not the “senior” associate justice—despite having served on the Court for more than 19 years.

That got me wondering as to who holds the record for longest tenure on the Court without ever having been the senior associate justice or Chief Justice—who, by tradition, is senior to everyone else. That bizarre (some might say “trivial”) record appears to belong to Justice John Catron, who, at the end of his 28-year, 29-day tenure on the Court in May 1865, was still junior to Justice James Moore Wayne.⁶

But not far behind Catron in second place is Justice Stephen Breyer, who was still junior to Justice Thomas at the end of his 27-year, 331-day tenure on the Court in June 2022. Breyer is in second place in another random Supreme Court trivia category, as well: his 11.5-year tenure as the Court’s junior justice (from his swearing in in August 1994 to Alito’s in January 2006) was also second in length, surpassed only by Justice Joseph Story. Story spent exactly 29 more days than Breyer as the junior justice—between his February 3, 1812 swearing in and Justice Smith Thompson’s on September 1, 1823, the longest period in the Court’s history without a change in its composition.

They don’t call it “trivia” for nothing.

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1. One of the early spending cases brought in federal court in Manhattan was filed after hours on a Friday night—when the plaintiffs knew in advance the identity of the “duty judge” to whom requests for emergency relief would be assigned. But the case was randomly assigned less than 24 hours later.

2. The fact that 31 different cases producing rulings on interim relief have been filed in D.D.C. alone ought (to say nothing of rules relating to the assignment of “related cases”) to quell at least some of the right-wing hysteria about the assignment of Chief Judge Boasberg to four “Trump-related” disputes. Of course, that hysteria is based, among other things, on the conspiracy theorists’ inability to tell the difference between the D.C. district court and the D.C. Superior Court (which has 61 judges), so…

3. It’s worth noting here that there have been multiple reports of cases in which the government took action it had promised not to take before the district court could rule—suggesting both that the government was trying to evade/thwart judicial review and that plaintiffs in other cases might understandably be wary about waiting for the adversarial process that must precede the issuance of a preliminary injunction. The more that the government misbehaves in these procedural respects, the more plaintiffs are justified in seeking (and courts are justified in issuing) TROs.

4. Judge Henderson and Judge Walker each concluded that the court of appeals had jurisdiction, although they disagreed as to whether a stay should issue.

5. Of the 31 cases in our dataset filed in D.D.C., 17 produced grants of relief and 14 produced denials. Breaking those out by who appointed the judges, 10 grants and six denials came from Democratic appointees; seven grants and eight denials came from Republican appointees.

6. Among the ten longest-serving justices in the Court’s history, Wayne (who’s #10) is the only one who I’d say is largely unknown—even among lawyers. (The first nine in order: Douglas, Field, Stevens, J. Marshall, Black, Harlan I, Brennan, Story, Thomas.)