174. Justice Gorsuch's Attack on Lower Courts

Just like the earlier rulings that Justice Gorsuch claims lower courts are defying, his concurrence in the NIH grant cutoffs case would be a lot more convincing if it showed more of its work.

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The biggest headline out of the Court last week was, unquestionably, Thursday’s fractured ruling on the Trump administration’s emergency application in the NIH grant cutoffs case—NIH v. American Public Health Association. With Justice Barrett playing the part of Solomon, one 5-4 majority froze a district court ruling that would have required the restoration of $783 million in grants that the National Institutes of Health had stopped paying because it claimed the grants had some connection to DEI. A different 5-4 majority left intact that part of the district court’s ruling that had blocked the specific governmental directives underlying the grant cutoffs—the first even partial loss for President Trump on one of his own emergency applications since April.

But in my view, the real headline among the five separate opinions filed by the justices on Thursday was the opinion “concurring in part and dissenting in part” filed by Justice Gorsuch, and joined in full by Justice Kavanaugh. In it, Gorsuch accused the lower courts in this case—and in two other cases—of open defiance of earlier rulings by the Supreme Court on emergency applications. More than that, Gorsuch claimed that the Court’s interventions in many of the Trump cases would be “unnecessary” but for bad behavior by lower courts.

I realize this will sound like a broken record to regular readers of this newsletter, but Gorsuch’s argument is not just specious; it is affirmatively dangerous—coming at a time when an increasingly popular claim by the President and his supporters is that any lower court ruling adverse to the administration is illegitimate. It would be one thing if Gorsuch had incontrovertible evidence of lower-court defiance. But as I show below the fold, the opposite is true. Instead, the real culprit here is the Supreme Court’s own majority, which continues to hand down thinly (or entirely un-)explained rulings in these cases and expect lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.

The Court may have the raw power to act that way. But to then criticize lower-court judges—who, unlike the justices, are moving heaven and earth to provide lengthy, written rationales of their decisions—is not just profoundly disrespectful; it is further enabling an increasingly loud (and increasingly dangerous) anti-judiciary narrative on the right, one that, when the time comes, is unlikely to treat the Supreme Court any differently.

But first, the (rest of the) news.

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On the Docket

Before Thursday’s ruling in the NIH grants case, last week saw two other sets of rulings from the full Court: The second of three summer “housekeeping” order lists on Monday; and three denials of emergency relief (over no public dissents) to Florida death-row inmate Kayle Bates, who was executed Tuesday evening. The three orders in Bates were the Court’s 123rd, 124th, and 125th full Court rulings on emergency applications during the October 2024 Term—breaking the record for most such rulings in the Court’s history, which was set … last term.

Then, just before the close of business on Thursday, the Court handed down its long-outstanding decision in the NIH grants case. The ruling has no majority opinion—and just a single analytical paragraph:

The application is granted as to the District Court’s judgments vacating the Government’s termination of various research-related grants. See Department of Ed. v. California, 604 U. S. ___ (2025) (per curiam). The Administrative Procedure Act’s “limited waiver of [sovereign] immunity” does not provide the District Court with jurisdiction to adjudicate claims “based on” the research-related grants or to order relief designed to enforce any “‘obligation to pay money’” pursuant to those grants. Id., at ___ (slip op., at 2). And while the loss of money is not typically considered irreparable harm, that changes if the funds “cannot be recouped” and are thus “irrevocably expended.” Philip Morris USA Inc. v. Scott, 561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers). The Government faces such harm here. The plaintiffs do not state that they will repay grant money if the Government ultimately prevails. Moreover, the plaintiffs’ contention that they lack the resources to continue their research projects without federal funding is inconsistent with the proposition that they have the resources to make the Government whole for money already spent. The application is otherwise denied.

It took a bit of work—and reading—to figure out what had happened, but the five separate opinions respecting the Court’s cryptic order helped to make things clear. The district court’s ruling had included two different mandates: the first blocked the underlying guidance that the government had relied upon to stop paying the challenged grants; the second ordered the government to turn the money taps back on. Four justices (Thomas, Alito, Gorsuch, and Kavanaugh) voted to block both mandates. Four justices (Roberts, Kagan, Sotomayor, and Jackson) voted to leave both intact. Only Justice Barrett voted to split the difference—voting to stay the repayment order (on the ground that such relief had to come from the specialized Court of Federal Claims, not a regular district court), but to leave the district court’s orders blocking the guidance undisturbed. Barrett’s opinion thus effectively requires litigants in these kinds of cases to split their claims—where challenges to the underlying policy decisions relating to grant terminations have to be filed in one court, but actual restoration of funding has to be sought in another.

Barrett’s argument for this kind of Solomonic compromise is incredibly technical (and, in my view, more than a little unpersuasive; it is very hard to believe that Congress would ever have wanted litigants to have to split their claims in the way she suggests). It’s also worth flagging that, although she claims it’s required by the brief majority opinion that the Court wrote in granting an earlier emergency application from the Trump administration, that decision (Department of Education v. California) is hardly clear on this point. This was the gravamen of Chief Justice Roberts’s (very unusual) separate opinion respecting Thursday’s ruling, which was joined by Justices Sotomayor, Kagan, and Jackson. Here is the full thing (my emphasis added):

In my view, the District Court’s vacatur of the challenged directives distinguishes this case from Department of Ed. v. California, 604 U. S. ___ (2025) (per curiam). This relief—which has prospective and generally applicable implications beyond the reinstatement of specific grants—falls well within the scope of the District Court’s jurisdiction under the Administrative Procedure Act, 5 U. S. C. §701 et seq. And if the District Court had jurisdiction to vacate the directives, it also had jurisdiction to vacate the “Resulting Grant Terminations.” App. to Application 148a–152a. The Government has neither contended that the terminations did not result from the directives, nor contested the District Court’s conclusion that the directives constituted final agency action. To the contrary, it has taken the position that the District Court’s two remedies are “inseparable,” Reply 5, and that the directives set forth “a uniform policy” that was “implement[ed] . . . globally,” Application 33. In such circumstances, the District Court was not “required . . . to split [the case] into two parts.” Bowen v. Massachusetts, 487 U. S. 879, 911 (1988).

The Chief’s opinion is important for two reasons: First, it gets at what, to me, is the principal legal objection to Barrett’s compromise. Second, and just as importantly, it provides pretty powerful evidence against the claim Justice Gorsuch leveled in his separate opinion (more on that below)—that the lower courts in this case had openly defied the California ruling.

Finally, Justice Jackson wrote for herself in once again excoriating the majority for abusing the Court’s procedures and precedents with respect to emergency applications. As Jackson points out (persuasively, in my view), the majority’s thinly explained extension of California and Gorsuch’s separate claim that the district court had defied it both underscored the dangers of the Court handing down rulings like California in the first place:

For a cautionary tale about lawmaking on the emergency docket, look no further than this newest iteration. By today’s order, an evenly divided Court neuters judicial review of grant terminations by sending plaintiffs on a likely futile, multivenue quest for complete relief. Neither party to the case suggested this convoluted procedural outcome, and no prior court has held that the law requires it. But, in the view of the deciding vote, California compels this conclusion. “So only another under-reasoned emergency order undergirds today’s.” Trump v. Boyle, 606 U. S. ___, ___ (2025) (Kagan, J., dissenting from grant of application for stay) (slip op., at 2).

And in a line that has been quoted widely, Jackson once again suggested that her colleagues in the majority had adopted this twisted, special rule only because of the identity of the applicant: “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”¹

That rule may get another test this week. Nothing formal is scheduled at the Court, but the justices are still sitting on another major emergency application from the Trump administration, this one seeking to freeze a lower-court order that had blocked what the plaintiffs claim are unlawful “stop-and-arrest” practices by roving immigration patrols in Southern California. That application has been fully briefed since August 13—so a ruling could come down any time. The justices are also certain to act on an emergency application from Curtis Windom—a Florida death-row inmate whose execution is scheduled for Thursday night.

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The One First “Long Read”:
Justice Gorsuch vs. The Lower Courts

As noted above, Justice Gorsuch wrote separately in the NIH grant cutoffs case, almost entirely to complain that lower courts are continuing to defy the Supreme Court’s rulings on emergency applications. Don’t take my word for it, though; here’s the first sentence of his opinion, which Justice Kavanaugh joined in full: “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.”²

Gorsuch’s opinion purports to offer three examples of such defiance. It’s worth walking through each of them both to see how empty the charge is and how the real culprit in each case is the Supreme Court itself—which continues to insist that even un-explained (and thinly explained) rulings have broad implications district courts are bound to follow.

Gorsuch’s first example is this very case—and whether the district court defied the justices’ earlier ruling in California. Per Gorsuch, “California explained that ‘suits based on any express or implied contract with the United States’ do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act.” But note the critical question of what it means for a suit to be “based on any express or implied contract with the United States.” As Chief Justice Roberts pointed out in his own opinion in the NIH case, the suits at issue here were not “based on any express or implied contract,” but were rather broader challenges to the directives the district court enjoined. The critical point here is not that the Chief Justice is right and Gorsuch is wrong (although I’m sympathetic to that view); it’s that the cryptic majority opinion in California provided no analysis at all of what it means for a suit to be “based on” a contract with the United States. Both the district court and the First Circuit explained, in detail, why they thought the claims here were different. Again, Justice Gorsuch has every right to disagree with those explanations;³ to suggest that they reflected “defiance” of California is to read into the four-paragraph majority opinion in California both analysis and a holding that the 5-4 majority in that case just didn’t provide.

Gorsuch’s second example—the aftermath of the Court’s first ruling in the “third-country removals” case, DHS v. D.V.D.—is even less defensible. In his NIH opinion, Gorsuch claims that “two months ago another district court tried to ‘compel compliance’ with a different ‘order that this Court ha[d] stayed.’ Department of Homeland Security v. D. V. D., 606 U. S. ___, ___ (2025) (Kagan, J., concurring) (slip op., at 1).” Just to remind readers, the Court’s original order in D.V.D. had no explanation whatsoever—and provided only that it stayed the district court’s “April 18” order in that case. The district court subsequently concluded that the Supreme Court’s intervention had no effect on a later order the court had issued—since the Supreme Court majority hadn’t mentioned that order at all, and since Justice Sotomayor’s dissent explicitly suggested that the later order hadn’t been before the Court. The justices would subsequently “clarify” that their first ruling also applied to the district court’s second order. But the suggestion that the district court had “defied” the Supreme Court in that case is risible. If the majority in D.V.D. wanted to be clear that its initial ruling necessarily froze the district court’s second order, it … could’ve said so (all the more so given that the dissent had expressly said that it didn’t).

Finally, Gorsuch points to the Boyle case—and the claim that “Still another district court recently diverged from one of this Court’s decisions even though the case at hand did not differ ‘in any pertinent respect’ from the one this Court had decided.” There, the district court had blocked President Trump from removing the Democratic members of the Consumer Product Safety Commission by distinguishing the Court’s cryptic ruling in Trump v. Wilcox—which devoted exactly four paragraphs to the question of when/whether statutes limiting the President’s power to remove members of agencies like the CPSC are constitutional. What’s especially striking about Wilcox is that the Court itself recognized an exception to the rule Gorsuch claims it laid down in that ruling. Again, one can disagree with the lower courts’ view that the CPSC was worthy of another exception. But that’s just not the same thing as what Gorsuch claims—that “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.” How can a precedent “squarely control” anything when (1) it says nothing at all (D.V.D.); (2) it has an unreasoned exception that invites other exceptions (Wilcox); or (3) it didn’t decide the question it supposedly controls (California)? Indeed, given the criticisms of the Court treating thinly (or un-)explained rulings on emergency applications as precedents at all, chastising lower courts without responding to those concerns is … ironic.

Suffice it to say, Gorsuch’s effort to cast these three cases as acts of defiance by lower courts fails to persuade on its own terms. I also think there are three broader problems with the narrative his opinion embraces:

First, taking Gorsuch’s complaint at face value, it’s not just a complaint about district courts; he’s also complaining about the courts of appeals in these cases, to say nothing of at least some of his colleagues on the Supreme Court, at least three (and as many as five) of whom who have reached different conclusions about whether the Court’s earlier rulings in the three cases Gorsuch cites “squarely controlled” the later ones. It seems telling that he doesn’t acknowledge that—especially given the Chief Justice’s specific, separate opinion in the NIH case.

Second, there is, of course, an easy way for Gorsuch and the rest of the justices in the majority to ensure that they’re providing guidance so clear that lower courts would be in obvious defiance for not following it: They could PROVIDE CLEAR GUIDANCE. I’ve made this point before (multiple times). But for the justices to complain about lower courts’ failure to read their minds is especially galling. No, the Court doesn’t have to provide full-throated explanations in these cases (although I continue to believe that it should). But writing little to nothing and then complaining about lower courts not correctly divining the justices’ intent strikes me as little more than hubris.

Third, there’s something especially ugly about this kind of criticism of the lower courts at this particular moment—when we’re continuing to see heated rhetoric from President Trump and his supporters virtually any time a district court does anything even slightly adverse to the federal government. A good case in point here is the hysteria over last Thursday’s ruling by Chief Judge Brann (who was active in the Federalist Society before his appointment, not that it should matter) that Alina Habba is not lawfully serving as the U.S. Attorney for the District of New Jersey. And there’s still the pending misconduct complaint Attorney General Bondi filed against D.C. district court Chief Judge Boasberg.

These attacks on lower-court judges are troubling enough in the abstract, but it’s even worse for two of the Supreme Court’s justices to give them credence. Justices Gorsuch and Kavanaugh may think that this is about the relationship between the Supreme Court and lower courts, but it’s also about the relationship between the federal courts and the Trump administration, writ large. If the central claim from the President and his supporters is that unelected judges shouldn’t have the power to thwart President Trump (and are abusing their authority whenever they do so), there’s no way in which that claim can or will be analytically limited to district or circuit judges.

Justices Gorsuch and Kavanaugh either don’t understand that, or they do. I’m not sure which one is more disconcerting.

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SCOTUS Trivia: Eight Justices Dissent

One of the more curious features of the Supreme Court’s ruling in the NIH grant cutoffs case is that eight different justices dissented from at least part of it—everyone except Justice Barrett. If you could use a good explanation for how that’s possible, it comes down to the difference between the Court’s judgment and its rationale—about which I’ve written before. Indeed, there are some famous examples of eight justices dissenting—the Bakke affirmative action ruling (which only Justice Powell joined in full) perhaps foremost among them, with the 2012 Affordable Care Act ruling right behind.

The trivia is the last time that this happened. Unless I’m missing one, I believe the Court’s 2019 ruling in the Census citizenship case, Department of Commerce v. New York, was the most recent prior example. In that case, Chief Justice Roberts was the lone vote in support of the entire rationale—with the justices to his right dissenting as to part of it; and the justices to his left dissenting from the rest.

It is theoretically possible to have a ruling from which all nine justices dissent, at least in part. And there may well be examples of them in the Court’s history. But at least as I’m writing this, none come to mind (please feel free to share examples in the comments if you’re aware of any).

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1. Yes, this is the first time that the term “Calvinball” has ever appeared in the United States Reports.

2. I’ve written before about what it means for lower courts to be “bound” by Supreme Court decisions. Suffice it to say, Gorsuch’s opinion doesn’t get into the nuances.

3. Gorsuch devotes one paragraph to trying to explain why the district court’s effort to distinguish California fail, but his argument depends upon a sleight of hand. Here’s what he wrote:

To be sure, beyond expressing mere disagreement with California, the district court also sought to distinguish it. But that effort failed too. This case, the district court asserted, is “somewhat different” from California because the “only claim” there concerned the denial of “previously awarded discretionary grants.” ___ F. Supp. 3d, at ___, App. 228a (internal quotation marks omitted). But the same holds true here. The only injury the district court sought to remedy in its judgments stems from the government’s denial of previously awarded discretionary grants. Accordingly, California controls.

In other words, the district court concluded that California was different because the only claim in that case involved restoring grant money. Gorsuch says this case is the same because the plaintiffs’ injury stems from a grant cutoff (even though they have a separate claim that the guidance is unlawful). But California focused on claims, not injuries—as the Chief Justice’s opinion makes clear.