What’s A Trial Judge To Do With The Shadow Docket?

My dear friend, Judge Richard Kopf, had a problem. Whether he agreed with the Supreme Court or not on any given case, he understood it was his obligation as a district court judge to follow its precedent. After all, they were Supremes and he was . . . not. But how, he complained, was he supposed to follow its precedent when it failed to provide either a rule or a coherent rationale that told district judges what to do in order to comply? Even when SCOTUS tried to explain itself, he found the explanations unhelpful and frequently impossible to apply to real cases in real district courts in the real world.

His take was that the Supreme Court was too absorbed by impractical ideology, deliberately vague to cover its butt, and lacked a functional understanding of what trial court judges did in the trenches.

Since then, it’s only gotten worse, as the Supreme Court has resorted to cursory, unexplained holdings on its shadow docket to keep pace with the volume of issues raised by Trump’s monthly weekly daily hourly initiatives imposed by Executive fiat, whether by EO, twit or impulsive presser musing. And lower court judges have a problem with that.

Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried the practice is undermining the judiciary at a sensitive time.

Some judges believe the Supreme Court, and in particular Chief Justice John Roberts, could be doing more to defend the integrity of their work as President Donald Trump and his allies harshly criticize those who rule against him and as violent threats against judges are on the rise.

When a case is brought before a district judge, most do their best to rule in accordance with existing law and precedent. They may be right. They may be wrong. After all, that’s why they build appellate courthouses. But what they are not is “radical leftist losers who should be impeached” or worse. Ironically, the same is said whether they were appointed by President Obama or Reagan, or even Trump.

Personally attacking he judge is a lot easier than explaining to a cadre of people for whom multisyllabic words causes migraines why the administration disagrees with the rationale. Each time Trump loses, he and his minions attack the judge, and for some odd reason, district judges aren’t thrilled at the prospect of being threatened with death for their ruling.

Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.

And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.

The problem is not that the Supreme Court disagrees with the ruling, although it is troubling that they seem undeterred by the fact that a slew of lower federal judges, on various district court benches and circuits, are all in agreement. The problem is that the Supreme Court cuts their knees out from under them in rulings without rationales that make Trump and his minions appear to be quite right that any judge who rules against Trump is fodder for the next plane to Uganda.

A judge writes a 130-page decision, carefully and fully explaining the law, the precedent and her ruling. Trump ridicules the judge’s name, ethnicity and claims the judge’s daughter’s mailman was an Obama operative. A circuit court panel writes a 98-page affirmance, carefully parsing the district judge’s opinion. Trump rails against the judges and their TDS-fueled hatred of America. Then the Supreme Court, in a week and a half, issues a one-paragraph decision that says “nah.” Trump gives that special smug smile of his, short arms folded across his broad chest, and proclaims complete vindication. Trump was right about everything, as its says on the hat he wears indoors for no comprehensible reason other than it covers what’s left of his hair.

Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.

“It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs.”

Judges are extremely reluctant to criticize other judges, especially their superiors on the judicial food chain. It’s not only frowned upon, but can border on judicial impropriety. But they have a damn good point here, and judicial impropriety is a small price to pay when the alternative is serious death threats.

The Supreme Court has failed the district and circuit courts in two very distinct ways. The first is that they provide little clarity or guidance in what they expect of lower courts because of these cursory shadow docket rulings. These one graf rulings may cover SCOTUS’ callipygian buttocks, but they leave the delicate tushies of lower court judges brutally exposed.

The second is that while the Supreme Court justices may want the judiciary to turn down the heat caused by Trump’s lawless initiatives, they do nothing to protect and defend their brethren from looking exactly like the partisan miscreants Trump claims they are.

It’s understandable that the Supreme Court is twisting itself into a pretzel to avoid the constitutional crisis Trump generates with every itch he scratches, even if that horse has long since left the barn and is now five states over, but doing so at the expense of district and circuit judges gives rise to justifiable complaints in the trenches. If SCOTUS wants lower court judges not to “defy” its rulings, then it has to do a whole lot better making its rulings clear and applicable. If that can’t be done with the speed needed for the shadow docket, then the Supreme Court needs to work harder, not shift the blame to district and circuit judges.


Discover more from Simple Justice

Subscribe to get the latest posts sent to your email.

5 thoughts on “What’s A Trial Judge To Do With The Shadow Docket?

  1. lionsfan54

    someday historians will look back and shake their heads at just how Trump had so much power. Even SCOTUS cowers to him

  2. Hunting Guy

    Robert Baden-Powell.

    “The secret of getting successful work out of your trained men lies in one nutshell—in the clearness of the instructions they receive.”

  3. The Infamous Oregon Lawhobbit

    Writing concise decisions with clear explanations of reasoning and results for the parties?

    That’s just crazytalk and would likely mean the end of the justice system as we know it…

    Though I have to say that Oregon’s Court of Appeals and Supreme Court tend toward clear and understandable decisions, often quite readable, in fact.

Comments are closed.