WASHINGTON – As lower court judges apply Supreme Court decisions to Trump administration disputes, some justices don’t think they’re getting it right − and potentially deliberately so.
“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Supreme Court Justice Neil Gorsuch recently admonished in a particularly pointed statement joined by Justice Brett Kavanaugh.
His comments came as part of a fractious Aug. 21 court decision allowing the administration to cancel for now health research grants it says promote diversity, equity and inclusion − also known as DEI.
More: DEI grants on the chopping block: Supreme Court sides with Trump on NIH research
Gorsuch wrote that the federal judge who blocked the DEI grant cancellations while the case is being litigated should have known he couldn’t do that.
That’s because the Supreme Court in April said these challenges belong in a different court that handles government contract disputes.
Gorsuch called the teacher training grants at issue in that case “materially identical” to the research grants awarded by the National Institutes for Health.
More: Supreme Court allows Trump to halt teacher training grants for now
But Chief Justice John Roberts – along with the court’s three liberal justices – said the two cases were different and the district judge’s order was valid.
Amy Coney Barrett weighs in
Justice Amy Coney Barrett said part of the case could stay with the judge while the rest belonged in the Court of Federal Claims, highlighting the inability of the justices themselves to agree on an approach.
Steve Vladeck, a law professor at Georgetown University and expert on the high court’s “emergency docket,” wrote on Substack that the real issue is the court hands down thin rulings on emergency appeals and expects “lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.”
More: Why is the Supreme Court siding with Trump? Elena Kagan says the majority should explain.
Justice Ketanji Brown Jackson made a similar point when writing separately to complain that her colleagues thought the court’s previous “half paragraph of reasoning” in the teacher grant case was enough to back the administration’s “abrupt cancellation of hundreds of millions of dollars allocated to support life-saving biomedical research.”
Jackson also sharpened her previous concern that the court is showing preferential treatment for the government along with a willingness to undercut lower court judges.
“This is Calvinball jurisprudence with a twist,” Jackson wrote, referring to a made-up game in the comic strip Calvin and Hobbes. “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”
More: How Justice Ketanji Brown Jackson is standing out from her liberal colleagues
Richard M. Re, a professor at University of Virginia School of Law, thinks both Gorsuch and Jackson were too quick to allege bad faith – Gorsuch on behalf of a lower court judge and Jackson on behalf of some of her colleagues.
The fractured nature of the vote in the NIH grant case, Re wrote on Substack, shows that “the key legal issue was difficult and maybe indeterminate.”
This article originally appeared on USA TODAY: Gorsuch warns judges not to `defy’ Supreme Court decisions
