155. What District Court Critics Aren't Telling You

The increasingly loud claim that district courts are abusing their powers by blocking Trump administration policies depends upon a series of indefensibly selective (and easily rebutted) arguments.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

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. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

I wanted to use today’s “Long Read” to return to a topic I first covered at the end of March—the increasingly noisy (and clumsy) attacks on federal district judges who have had the temerity to continue blocking Trump administration initiatives. The next especially visible iteration of this is due tomorrow, when two Senate Judiciary subcommittees are holding a joint hearing titled “The Supposedly ‘Least Dangerous Branch’: District Judges v. Trump.” Coming on the heels of another bad week for Trump in federal trial courts—including two different rulings blocking many of the President’s controversial tariffs—the moral seems to be that district judges are abusing their authority simply by blocking federal government activities.

Leaving aside the shameless hypocrisy of this charge (coming from many of the same folks who cheered district court rulings blocking Biden administration policies), it is predicated on a series of remarkably incomplete claims. Thus, today’s post identifies at least five ways in which the “District Judges vs. Trump” framing is based upon selective representations of the federal courts’ track record over the first 4.5 months of the second Trump administration—a record that ought to be viewed and understood in full. The TL;DR is that this is all a relatively transparent and ultimately unpersuasive attempt to deflect attention away from whether Trump’s initiatives are actually lawful (which many are not)—a conclusion that might, in other times, put pressure on Congress to do its job, rather than criticizing federal judges for doing theirs.

But first, the news.

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On the Docket

Last week started with a relatively quiet Order List. The Court added one case to its docket for the October 2025 Term (bringing the total to nine); and there were three published dissents from denials of certiorari—one by Justice Gorsuch in the Apache Stronghold case; and one each by Justices Thomas and Alito in a case about a Massachusetts seventh-grader who was disciplined for wearing a shirt that said “There Are Only Two Genders,” and was rebuffed by lower courts in his effort to sue the school for violating his First Amendment rights.

The Court also handed down one ruling in an argued case—in Seven County Infrastructure Coalition v. Eagle County. Although the judgment was unanimous (with Justice Gorsuch recused), it was only a five-justice majority, in an opinion by Justice Kavanaugh, that significantly narrowed the scope of the National Environmental Policy Act (NEPA), and—perhaps more importantly—held that courts should give significant deference to federal agencies who say they have complied with that law. Justice Sotomayor wrote a separate opinion concurring only in the judgment on narrower grounds, in which Justices Kagan and Jackson both joined. Among other things, it’s a good example of the difficulties of looking just at vote counts when adding up Supreme Court rulings; this will go in the books as a “unanimous” decision, but with respect to how big a bite the Court took out of an important environmental protection statute, the vote was really 5-3.

But what was unquestionably the most important ruling from the Court last week came Friday morning—in Noem v. Doe. In an unexplained order, a majority put back into effect the Trump administration’s revocation of a humanitarian parole program the Biden administration launched in 2023 that allowed certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry for a temporary stay of up to two years. In the process, the Court rendered many (if not most) of the more than 500,000 individuals in the program immediately subject to removal (for more background on the dispute, see my post from May 15).

Justice Jackson wrote an eight-page dissent, joined by Justice Sotomayor, in which she argued (quite persuasively, in my view) that the balance of the equities should have overwhelmingly weighed against granting emergency relief here. As she put it, “the Court allows the Government to do what it wants to do regardless, rendering constraints of law irrelevant and unleashing devastation in the process.” Alas, this is hardly the first time that the Court has failed to adequately account for the equities in resolving an emergency application. And the more that these rulings reflect little more than the justices’ predictions of how they would rule on the (undeveloped and unbriefed) merits, the more the justices are inviting every litigant to whom they may be sympathetic, and not just the Trump administration, to keep bringing emergency applications in contexts in which there is no actual emergency. That’s a recipe for more high-profile rulings on the emergency docket, not less.

Turning to this week, we expect another Order List at 9:30 ET. And the Court is set to take the bench Thursday at 10:00 ET to hand down one or more rulings in argued cases (now that it’s June, the odds start tilting toward more decisions each time the justices take the bench). Beyond that, nothing formal is scheduled. But speaking of the emergency docket, besides the birthright citizenship cases, the Court is also sitting on three emergency applications from the Trump administration—two of which (in the DOGE/Social Security case and the DOGE/FOIA dispute) are now ripe; and the third of which (in the D.V.D. third-country removals case) should be fully briefed by the end of the week. It’s a good bet that rulings on at least one (if not both) of the DOGE-related applications will come down sometime this week, although who (besides the justices) knows when?

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The One First “Long Read”:
What Critiques of District Judges are Leaving Out

The notion that district judges shouldn’t thwart the will of democratic majorities is antithetical to why the Constitution guarantees the independence of the federal courts in the first place—to stand up against tyrannies of the majority, not roll over to them. This isn’t exactly a controversial view; many of the same folks who are criticizing district courts the loudest today were cheering on federal district courts when they were thwarting Biden administration initiatives.

But beyond the obvious logical defect in this narrative, it seems worth also highlighting what contemporary critics of the role district courts have been playing are not saying—what they’re leaving out of their arguments and hoping no one notices. There are at least five different respects in which this emerging narrative is materially incomplete—and in which a full account of the work of federal district courts over the last 4.5 months looks quite a bit different from the one about which we’re likely to hear at tomorrow’s hearing:

What’s Missing, #1: The (Full) Math

When the full Senate Judiciary Committee held a very similar hearing in April (at which I was one of the witnesses), one of the charges leveled by Republican Senators was that President Trump has been subject to an unprecedented number of nationwide injunctions. Likewise, a lot of the criticism of district courts has played up that a majority of the rulings blocking Trump policies have come from the same three (or, depending upon who’s making the claim, five) district courts: D.C.; Massachusetts; Maryland; the Northern District of California; and the Western District of Washington.

Both of these claims are leaving out the rest of the numerical story. Starting with the total number of rulings (and/or the number of nationwide injunctions issued against Trump policies), there is the obvious problem that these claims are providing a numerator without a denominator. President Trump has boasted, repeatedly, about how many more executive orders he’s signed in the opening months of this administration than any of his predecessors; and about how many major policy initiatives his administration has undertaken. Taking those claims at face value, it ought to follow that even if this administration had an average regard for the rule of law, it would be subject to more adverse judicial rulings—for no other reason than because it was taking a higher total number of legally contestable actions. To play up how much Trump has done in one conversation and complain about how busy federal courts have been in another is to assume folks lack basic logical reasoning skills.

Speaking of math, it’s also worth updating just how widespread the rulings against Trump policies have become. Using the same methodology that we used back in March, one of my RAs (Alyssa Negvesky) and I have counted a total of 97 cases, as of last Thursday, in which federal district courts have issued some kind of coercive relief against the Trump administration. (Lots of folks counting these rulings will have a higher total, but that’s usually because they’re counting multiple rulings in the same case. We’re focused on the number of unique cases.)

The rulings in those 97 cases have come from 73 unique district judges sitting in 25 different district courts (across 10 circuits) appointed by 7 different presidents (including President Trump). Indeed, rulings in 26 of the 97 cases have come from judges appointed by Republican presidents.

As for geography, it is true that a majority of these rulings have come from three district courts (D.C., Massachusetts, and Maryland). But those three jurisdictions are responsible for 55 of the 97 cases—or 56.7%. That means 43.3% of these rulings are coming from other district courts. And even if we expand to the top five (which, in our data, includes the Western District of Washington and the Southern District of New York, not the Northern District of California), that still gets to only 66/97 (68.0%). In other words, there have been 31 cases in which district courts other than the ones Republicans have singled out for criticism have blocked Trump policies—courts like the Southern and Western Districts of Texas; the Middle District of Georgia; the Southern District of West Virginia; the District of South Carolina; and so on. Unlike during the Biden administration, when litigation challenging federal policies was steered almost exclusively into the Fifth and Eighth Circuits (and mostly from the same remarkably small group of specific district judges), the litigation against Trump has been remarkably geographically diverse; and the rulings blocking Trump policies have come from a comparably diverse array of courts and judges. Meanwhile, as I noted back in March, we’ve seen none of the individual judge-shopping that became so prevalent during the Biden administration; the next ruling blocking a Trump policy by a judge in a single-judge division of a federal district court will be the first.

I realize that there’s political hay in making it sound like all of these rulings against Trump are coming from the same three (or five) district courts. But one could literally excise the D.C., Maryland, and Massachusetts cases from the dataset and still be left with a remarkably large number of rulings blocking actions by the federal government across the first 4.5 months of a new administration. Not accounting for all of those other rulings (and for the geographic and ideological diversity of the judges from whom they’re coming) is … telling.

What’s Missing, #2: The Dogs That Aren’t Barking

The total number of cases is also relevant in another respect that isn’t getting nearly enough attention: the dogs that didn’t bark.¹ Even as the Trump administration has brought an unprecedented number of emergency applications to the Supreme Court (we’re up to 17, at least at this writing), and even as the Supreme Court has granted a number of them (eight, with six pending), that still leaves literally dozens of adverse rulings by district courts that the Trump administration has been willing to leave intact—either by not appealing them in the first place, or by not pushing further after being rejected by courts of appeals.

Consider, in this respect, three of the challenges brought by law firms to executive orders targeting them—the Perkins Coie, WilmerHale, and Jenner & Block cases. In all three, district courts have ruled against the government—issuing temporary (and now permanent) relief. And yet, the Justice Department didn’t appeal any of the interim rulings in those cases (even as the Supreme Court has arguably made it easier for the government to appeal temporary restraining orders); and it has yet to appeal any of the final rulings in those cases, either.² Ditto the Alien Enemies Act cases—in which the government hasn’t appealed injunctions entered by district courts in the District of Colorado;³ the Southern District of New York; the Western District of Pennsylvania; or the Southern and Western Districts of Texas.

There are also a number of examples of the government seeking emergency relief from courts of appeals, but then not going to the Supreme Court once they were rebuffed by the intermediate courts—including in high-profile cases like J.O.P. (the case about the removal of a Venezuelan national known as “Cristian” to El Salvador in violation of a class action settlement to which he was a party); Ozturk; and Khalil.

The upshot is that, even as the government has been able to obtain a series of significant interventions from the Supreme Court, the much larger data set has involved cases in which a district court ruled against the Trump administration, and the government either (1) didn’t appeal at all; or (2) dropped its appeal after a court of appeals denied emergency relief. These other cases are significant because they demonstrate that there is a universe of rulings blocking Trump administration conduct that the Trump administration is accepting—where the government’s lawlessness isn’t even being challenged on appeal by the government.⁴

If the district courts’ rulings in those cases aren’t worthy of being challenged, that seems to complicate any narrative about how district courts are abusing their authority in ways that amount, in Stephen Miller’s words, to “a judicial coup.” At the very least, it requires those advancing these claims to have some explanation for why some district judges ruling against Trump are abusing their power when others (or the same judges in different cases) … aren’t.

What’s Missing, #3: Procedure vs. Substance on Appeal

Even within the minority of cases in which the Trump administration has obtained relief from adverse district court rulings either from courts of appeals or the Supreme Court, it’s also worth pointing out that most of those decisions have been on procedural grounds—not substantive ones. Indeed, the first four of the Supreme Court’s eight grants of emergency relief to the Trump administration thus far were all expressly on procedural grounds—that the teacher training grants case may have needed to be filed in the Court of Federal Claims; that the Alien Enemies Act cases had to be brought as habeas petitions; that the plaintiffs in one of the probationary-employee-firings cases didn’t have standing; and that the district court in Abrego Garcia had to tread a bit more carefully in how it ordered the government to “facilitate” his return. Three of the four grants since then have been unexplained; and only the fourth, in Wilcox, could arguably be portrayed as siding with Trump on the merits (in a context in which there’s broad agreement that existing Supreme Court precedent supports the adverse district court rulings).

In other words, most of Trump’s “wins” on appeal thus far have quite pointedly not involved substantive validations of the government’s behavior. Procedural wins are still wins, of course—and I certainly agree that courts can abuse their authority even in striking down government actions that I believe are unlawful. But insofar as these appellate successes are being (or will be) held out as evidence that district courts are restraining lawful and legitimate conduct by the Trump administration, that’s just not true in the mine-run of cases.

What’s Missing, #4: The Government’s Unprecedented Defiance

Although the first three points go to filling out the data set in any conversation about district court rulings against Trump administration policies, it seems just as important to make a more qualitative point—that at least some of the rulings that are singled-out for their aggressiveness did not come out of the blue, but were in direct response to the government’s own litigation behavior.

I wrote about this in detail last Friday in the context of the D.V.D. case (about whether the government must provide notice and an opportunity to seek relief before removing migrants to countries other than the one designated in their removal proceedings). There, it was the government’s own outright defiance of a district court temporary restraining order that provoked a foreign relations/national security emergency—not the district court’s underlying ruling. Ditto the J.G.G., Alien Enemies Act case, in which many of Chief Judge Boasberg’s actions since March 15 were made necessary only by the government’s non-compliance with his temporary restraining orders on that date. The reality is that district courts have moved rather deliberately (including, in the Khalil case, perhaps far too deliberately) in dealing with unprecedented substantive and litigation behavior by the executive branch. Leaving the government’s behavior out of this story is, again, deliberately telling an incomplete narrative about why district courts have behaved the way they have.

What’s Missing, #5: The Unprecedented Attacks on Judges

Finally, we’ve also seen an unprecedented volume and tenor of attacks on district court judges—not just in the heated rhetoric of Trump administration officials, but in the pizza doxing of literally dozens of federal district judges (including most of the judges on the D.C. federal district court bench). And we’ve seen impeachment resolutions introduced against six different federal district judges (no impeachment resolutions against district judges were introduced during the Biden administration).

Of course, those attacks are a reaction to the district courts’ rulings against Trump administration policies, and not a part of them. But it seems grossly irresponsible, at a minimum, to not even acknowledge that district courts are under pressures we just haven’t seen before (or, worse, to make light of the threats)—while engaging in behavior that, whether intentionally or not, is only going to further stir the pot.

That is why it’s important for those who are going to criticize the behavior of district courts over the last 4.5 months not only to do so in good faith, but to bring receipts when they do. I’m all for legitimate criticism of federal judges (and justices) for decisions that don’t make sense or for bad behavior off the bench; indeed, that’s a common theme of this very newsletter. But especially given what has been happening over the last 4.5 months, to add fuel to the rhetorical fire without even trying to build a persuasive analytical case strikes me as the apex of irresponsibility on the part of anyone and everyone who’s doing it.

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Ultimately, if you’re a member of Congress who genuinely believes that district courts have regularly been making legal errors in these cases, it seems like an obvious response is to make it even easier to appeal adverse rulings. And if your view, instead, is that courts in general are getting in the way of behavior you think the President should have the authority to undertake (tariffs are an especially fitting example), then perhaps you should introduce legislation designed to authorize that behavior—rather than attacking the federal courts for doing their job.

But criticizing federal district judges for enforcing the laws as written, in a context in which rulings are coming from a stunningly broad array of jurists and many aren’t even being challenged on appeal, is even worse than Congress abandoning its institutional responsibility; it’s Congress (and the President’s supporters) affirmatively trying to undermine the one institution that, to date, has been even somewhat effective in restraining the President’s lawlessness. That’s all that this is—and it should be called out as such.

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SCOTUS Trivia: District Judges to Serve as Justices

Although it has been fairly common, throughout the Supreme Court’s history, for justices to have had prior judicial service (including from 2006-10, when all nine justices had been appointed to the Court from federal courts of appeals), most of that service has been either on federal appellate or state courts. Only two of the current justices (Sotomayor and Jackson) served as federal district judges—and they’re only the ninth and tenth justices in the Court’s history (out of 116), respectively, to have spent part of their careers on the federal trial bench.

The (incredibly obscure) trivia is the identity of the first justice to have served as a federal district judge: Robert Trimble, who was appointed to the Supreme Court by President John Quincy Adams in 1826 (JQA’s only SCOTUS appointment) after nine years as a federal judge on the then-District of Kentucky. Trimble was held in incredibly high esteem by his colleagues and contemporaries—and might be a more familiar name to us today if he hadn’t died suddenly just two years into his tenure on the Supreme Court.

For the record, the other seven justices to have served as federal district judges were Philip Barbour; Peter Daniel; Samuel Blatchford; Henry Brown; John Clarke; Edward Sanford; and Charles Whittaker. And in what has to go in the Johnny Vander Meer never-happening-again record books, Daniel was appointed to succeed Barbour twice—first as district judge for the Eastern District of Virginia (when Barbour was appointed to the Supreme Court); and then to the Court itself (when Barbour died). Now that’s trivia.

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Until then, please stay safe out there—especially if you’re a federal district judge.

1. The “dog that didn’t bark” is a mode of argument that relies upon the absence of an expected reaction as evidence. One of my two favorite in-class student comments in my career was when a student attributed that mode of reasoning to Justice Holmes. As I told the student at the time, he had the wrong Holmes. The quote is Sherlock’s, not Oliver Wendell’s.

2. Under Fed. R. App. P. 4(a)(1)(B), the government has 60 days from the entry of judgment to file a notice of appeal. So it’s possible that the government still will appeal at least some of these decisions. But given how quickly it has appealed both interim and final rulings in other cases, the fact that it hasn’t shown any sign of appealing these rulings yet is … telling.

3. The government did appeal Judge Sweeney’s temporary restraining order in the Colorado case (D.B.U.), but voluntary dismissed that appeal as moot once the TRO expired—and has not brought a new appeal from the preliminary injunction Judge Sweeney entered on May 6.

4. Nor do I think it would be any response to this point that the government may lack the resources to appeal all of these adverse rulings. First, the government has never said that. And second, even if that were true, the “we wanted to appeal but we just couldn’t” argument is not exactly a damning indictment of the district court’s reasoning.