No apology necessary

Being right on the law means never having to say you're sorry.

In yet another indication of how Donald Trump’s presidency has warped this nation’s institutions, at least one federal judge has apologized for reasonable judgments based on the law.

Senior U.S. District Judge William Young, a highly respected and long-serving district court judge, recently apologized for supposedly ignoring Supreme Court precedent. His apology came after the Supreme Court paused his order blocking the administration from canceling National Institutes of Health grants deemed to support diversity, equity, and inclusion (DEI) and LGBTQ health care. Young held a multi-day hearing and issued a 103-page opinion in which he found that the grant terminations were marred by “pervasive racial discrimination” and “demonstrate an unmistakable pattern of discrimination against women’s health issues.” The Supreme Court, in a three-paragraph order on its shadow docket, found that Young had no jurisdiction; the claims should have been brought in the Federal Court of Claims, a specialty court that hears monetary claims against the government. Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, went out of his way to write a concurring opinion dressing down Young. The opinion began: "Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.”

Defy the Supreme Court? That earlier decision that Young supposedly “defied” was an unsigned—indeed, perfunctory—four-paragraph interim order on the court’s shadow docket, entered with no briefing, no oral argument, no formal opinion, and little analysis.

Former Justice Stephen Breyer felt obliged to come to Young’s defense, saying he knew Young to be “scrupulously honest and respectful of higher courts.”

Neither should have happened. Young should not have apologized. No one needed to have rescued him.

Judge Allison Burroughs had a better approach. In an 84-page decision in a different case, after days and days of hearings, she found that the administration did not come close to complying with the procedural requirements for terminating Harvard University’s grants for an alleged Title VI violation. The administration’s claim that Harvard had inadequately responded to antisemitism was pretextual, undermined by its blatant failure to acknowledge what Harvard had done to ameliorate it. And the ever-escalating punishments imposed by the government were obviously in retaliation for Harvard's exercise of its free speech rights, not antisemitism.

The government argued that this was wrong court to hear these claims, based on that earlier shadow docket case; Burroughs disagreed, claiming the earlier case was distinguishable. “It may well be,” she wrote, “that these differences would not distinguish these claims in the eyes of the Supreme Court. But this is not Calvinball and there are rules. Under those rules, which are set by existing Supreme Court precedent, this Court cannot conclude that core First Amendment claims or pure statutory claims fall within the exclusive jurisdiction of the Court of Federal Claims.”

Calvinball! That refers to the comic strip “Calvin and Hobbes,” but more significantly, to Justice Ketanji Brown Jackson’s dissent in yet another emergency case. “This is Calvinball jurisprudence with a twist,” Jackson wrote. “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”

Most extraordinary of all was Judge Burroughs opinion: “The Court … fully agrees that this Court is not free to ‘defy’ Supreme Court rulings.” But, she added, “the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.” In one case, she noted, four justices went in one direction, four in another, and one “an outcome, which no party had requested.” She threw down the gauntlet: “[I]t is unhelpful and unnecessary to criticize district courts for ’defy[ing]’ the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

No apology there. None needed.

She was not the first judge to question the Supreme Court’s peremptory decisions. She was surely the most direct. Rhode Island-based U.S. District Judge Melissa DuBose, in a July order in litigation challenging President Donald Trump's overhaul of the U.S. Department of Health and Human Services, said she “will not interpret the Supreme Court's shadow docket summary orders (issued without any reasoning or explanation) as definitive indications.” And U.S. District Judge John Woodcock Jr. said, in issuing an order barring the administration from cutting off funding that the state of Maine uses to provide meals for school children, shadow docket orders have “limited precedential value” because of the lack of “full briefing or hearing.”

Just so.

Trump is stretching the bounds of presidential power, trying what has never been tried before, such as firing members of independent boards, terminating the constitutional guarantee of birthright citizenship, rescinding grants without due process, calling in troops to American cities, deporting immigrants under a 1798 statute applied only twice before, and on and on.

Lower courts have worked mightily to meet the moment, apply precedent, hold hearings, write lengthy opinions that courts of appeals have largely affirmed. They have been doing this only to find a Supreme Court entirely receptive to Trump’s moves even when it means jettisoning precedent, using its emergency “shadow” docket, with all the formality of notes on a napkin. In so doing, the justices demean the judges and the work they are doing—Young directly, others by implication. Trump seems to be making up the rules as he goes along; worse, so is the Supreme Court. What judge would have anticipated these challenges? Who would have predicted that those emergency orders were iron-clad precedent? No one expected Calvinball?

What should a lower court judge do? What they have been doing, with one exception: Don’t apologize.

Nancy Gertner, a retired U.S. District Court judge, is a senior lecturer at Harvard Law School.

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