Trump Has Ignited a Civil War Between the Federal Courts

The rebuke still prompted Judge William Young, who presided over the NIH case, to make a public apology to the justices “if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States,” during a court session earlier this week. Young, who became a federal judge the same year that Gorsuch graduated high school, explained that he “can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.” Nothing in his storied career suggests otherwise.

Kavanaugh, for his part, also offered some recent public contrition. “It’s possible we screwed up, very possible, we’re human,” he reportedly told a judicial conference this week. “But it’s also possible, and oftentimes is the case, that it’s the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult. I’m fully aware that can lead to a lack of clarity in the law and can lead to some confusion, at times.”

Those are fair points. They also strongly counsel against the justices’ current approach to the shadow docket in general. The Supreme Court is not obligated to treat every motion for a stay from the Trump administration as an emergency worthy of its immediate intervention, nor does it have to use those motions as a vehicle to create significant and unsettling shifts in long-standing precedent. The justices are more than able to rewrite precedent on the merits docket. As long as the court continues to wreak jurisprudential havoc with its emergency rulings, it should not be surprised if lower courts struggle to consistently interpret them. Like more than a few other woes in modern American life, this is all a monster of the Supreme Court’s own creation.