How Trump and SCOTUS Have Frustrated Federal Courts
Between the administration’s lawlessness and the high court’s radicalism, lower court judges are hung out to dry.
AMID THE NATIONWIDE grief and trauma over the killings of Renee Good and Alex Pretti by Donald Trump’s rogue federal agents, let’s not forget the tens of thousands of people currently in detention, including thousands of children. And let’s not forget the people who were disappeared over the last year: In some cases, individuals were released from detention and went into hiding, but in other cases they have simply vanished, no longer showing up in official databases. Nobody reportedly knows for sure where the Department of Homeland Security took them all, whether they’re being treated humanely, or how many even remain alive.
For the lucky ones whose whereabouts are known, and the even luckier ones who have managed to get legal assistance, lawyers are working to secure basic constitutional rights through the courts. It’s an uphill battle—not just because the Trump administration is acting lawlessly, but because the U.S. Supreme Court has made it harder for lower federal courts to hold the federal government accountable to the Constitution.
We know this because on Monday, a federal district court in Minnesota took the extraordinary step of issuing an order requiring that Todd Lyons, the acting director of ICE, personally appear before the judge to account for why one man has not been given a bond hearing despite multiple court orders. “The Court’s patience is at an end,” wrote Judge Patrick J. Schiltz, the Republican-nominated chief judge of the U.S. District Court for the District of Minnesota. In another order, Schiltz mentions “96 court orders that ICE has violated in 74 cases” and comments: “The extent of ICE’s noncompliance is almost certainly substantially understated.” (ICE released the man shortly after the order came down, relieving Lyons of the requirement to appear before the judge.)
The government’s utter disdain for lower federal courts is unsurprising. Just look at what the right-wing majority on the Supreme Court has done to its judicial colleagues at the behest of Trump.
It was just last year—although it feels like eons ago—that Trump sent scores of men, many of them innocent of any wrongdoing, to CECOT, the Salvadoran prison built to punish terrorists and gangsters. He sent them there without due process on the hunch that they were part of a Venezuelan gang called Tren de Aragua. Granting one of Trump’s “emergency” petitions for immediate review of a lower federal court order telling him to hold off until the men could get their constitutional due process, the Supreme Court took two major swipes at the lower courts’ ability to hold Trump accountable to the rule of law.
First, the majority ignored the disturbing fact that Trump had authorized the planes to take off after the lower court had already ordered them grounded. The justices didn’t seem to care. As Justice Sonia Sotomayor wrote in dissent, the majority “reward[ed]” the Trump administration for “ignor[ing] its obligations to the rule of law.”
Second was the majority’s pretzel-twisting with respect to the procedural technicalities of how the individuals framed their lawsuits. In general, cases in federal court appear on either the criminal docket (the government indicts a defendant) or the civil docket (everything else). The people shipped off to the CECOT prison were already in federal custody. They filed civil complaints in federal court challenging their removal from their places of detention to a foreign country with which they had no ties.
Rather than let those cases proceed as regular civil actions seeking injunctions, the Supreme Court manufactured a brand-new requirement that individuals already in custody who don’t want to be summarily removed must file their cases as petitions for habeas corpus, which is a civil action challenging the custody itself—not the removal. That has made it exceedingly more complicated and cumbersome for people to challenge Trump because individuals now have to file in the states in which they are detained, which the government changes without notice, giving Trump a huge advantage in outmaneuvering judicial review of what he is doing. As Judge Schiltz wrote in the Minnesota case, the government (in this case, the respondents Lyons and Homeland Security Secretary Kristi Noem) “decided to send thousands of agents to Minnesota to detain aliens without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result.”
AND LET’S NOT FORGET the separate “emergency” ruling in which the same majority refused to back up multiple federal courts that had stayed Trump’s unconstitutional executive order undoing the Fourteenth Amendment’s birthright citizenship guarantee. The justices in the majority instead signed on to a dizzyingly obtuse opinion chiding the lower courts for telling the Trump administration that it could not bypass the Fourteenth Amendment anywhere in the country.
The decision was widely characterized as a ban on so-called “universal injunctions,” but as Justice Sotomayor explained in another dissent, what the majority really did was insulate Trump from federal court injunctions that have bite: “No right is safe in the new legal regime the Court creates.” The majority essentially ruled that lower federal courts can only issue orders binding particular plaintiffs in particular jurisdictions—leaving Trump free to violate the law everywhere else, until all of the others affected either get their own lawyers and file their own lawsuits to secure their own injunctions, or manage to certify a class action, which is a complicated and difficult thing to do. The Court even left open whether it would ultimately strike down a class action against Trump anyway.
So where does this leave lower federal court judges? Twisting in frustration as Trump ignores them or circumvents them, knowing that the justices in the majority won’t back them up. It’s a profound imbalance in our constitutional system—one that Congress could rectify, if a responsible and attentive new Congress ever were to get down to the business of actually, you know, governing.
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