Neil Gorsuch gives away the game

In last week’s shadow docket order extraconstitutionally abrogating power to Trump, a few members of the majority broke protocol by actually deigning to write something. In the case of Neil Gorsuch, this was an extremely pissy concurrence accusing lower courts of defying the Court’s decisions:

Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them..All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect “the hierarchy of the federal court system created by the Constitution and Congress.”

This is both an admonishment to honest judges trying to do their jobs and an apologia for the Court’s own conduct — it might look like we’re abusing the shadow docket, but it’s just because lower courts are acting lawlessly.

The problem, as the guy who wrote the book points out, is that this is all intelligence-insulting bullshit:

I realize this will sound like a broken record to regular readers of this newsletter, but Gorsuch’s argument is not just specious; it is affirmatively dangerous—coming at a time when an increasingly popular claim by the President and his supporters is that any lower court ruling adverse to the administration is illegitimate. It would be one thing if Gorsuch had incontrovertible evidence of lower-court defiance. But as I show below the fold, the opposite is true. Instead, the real culprit here is the Supreme Court’s own majority, which continues to hand down thinly (or entirely un-)explained rulings in these cases and expect lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.

The Court may have the raw power to act that way. But to then criticize lower-court judges—who, unlike the justices, are moving heaven and earth to provide lengthy, written rationales of their decisions—is not just profoundly disrespectful; it is further enabling an increasingly loud (and increasingly dangerous) anti-judiciary narrative on the right, one that, when the time comes, is unlikely to treat the Supreme Court any differently.

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Gorsuch’s opinion purports to offer three examples of such defiance. It’s worth walking through each of them both to see how empty the charge is and how the real culprit in each case is the Supreme Court itself—which continues to insist that even un-explained (and thinly explained) rulings have broad implications district courts are bound to follow.

Gorsuch’s first example is this very case—and whether the district court defied the justices’ earlier ruling in California. Per Gorsuch, “California explained that ‘suits based on any express or implied contract with the United States’ do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act.” But note the critical question of what it means for a suit to be “based on any express or implied contract with the United States.” As Chief Justice Roberts pointed out in his own opinion in the NIH case, the suits at issue here were not “based on any express or implied contract,” but were rather broader challenges to the directives the district court enjoined. The critical point here is not that the Chief Justice is right and Gorsuch is wrong (although I’m sympathetic to that view); it’s that the cryptic majority opinion in California provided no analysis at all of what it means for a suit to be “based on” a contract with the United States. Both the district court and the First Circuit explained, in detail, why they thought the claims here were different. Again, Justice Gorsuch has every right to disagree with those explanations;3 to suggest that they reflected “defiance” of California is to read into the four-paragraph majority opinion in California both analysis and a holding that the 5-4 majority in that case just didn’t provide.

Gorsuch’s second example—the aftermath of the Court’s first ruling in the “third-country removals” case, DHS v. D.V.D.—is even less defensible. In his NIH opinion, Gorsuch claims that “two months ago another district court tried to ‘compel compliance’ with a different ‘order that this Court ha[d] stayed.’ Department of Homeland Security v. D. V. D., 606 U. S. ___, ___ (2025) (Kagan, J., concurring) (slip op., at 1).” Just to remind readers, the Court’s original order in D.V.D. had no explanation whatsoever—and provided only that it stayed the district court’s “April 18” order in that case. The district court subsequently concluded that the Supreme Court’s intervention had no effect on a later order the court had issued—since the Supreme Court majority hadn’t mentioned that order at all, and since Justice Sotomayor’s dissent explicitly suggested that the later order hadn’t been before the Court. The justices would subsequently “clarify” that their first ruling also applied to the district court’s second order. But the suggestion that the district court had “defied” the Supreme Court in that case is risible. If the majority in D.V.D. wanted to be clear that its initial ruling necessarily froze the district court’s second order, it … could’ve said so (all the more so given that the dissent had expressly said that it didn’t).

Finally, Gorsuch points to the Boyle case—and the claim that “Still another district court recently diverged from one of this Court’s decisions even though the case at hand did not differ ‘in any pertinent respect’ from the one this Court had decided.” There, the district court had blocked President Trump from removing the Democratic members of the Consumer Product Safety Commission by distinguishing the Court’s cryptic ruling in Trump v. Wilcox—which devoted exactly four paragraphs to the question of when/whether statutes limiting the President’s power to remove members of agencies like the CPSC are constitutional. What’s especially striking about Wilcox is that the Court itself recognized an exception to the rule Gorsuch claims it laid down in that ruling. Again, one can disagree with the lower courts’ view that the CPSC was worthy of another exception. But that’s just not the same thing as what Gorsuch claims—that “this is now the third time in a matter of weeks this Court has had to intercede in a case ‘squarely controlled’ by one of its precedents.” How can a precedent “squarely control” anything when (1) it says nothing at all (D.V.D.); (2) it has an unreasoned exception that invites other exceptions (Wilcox); or (3) it didn’t decide the question it supposedly controls (California)? Indeed, given the criticisms of the Court treating thinly (or un-)explained rulings on emergency applications as precedents at all, chastising lower courts without responding to those concerns is … ironic.

Suffice it to say, Gorsuch’s effort to cast these three cases as acts of defiance by lower courts fails to persuade on its own terms. I also think there are three broader problems with the narrative his opinion embraces:

First, taking Gorsuch’s complaint at face value, it’s not just a complaint about district courts; he’s also complaining about the courts of appeals in these cases, to say nothing of at least some of his colleagues on the Supreme Court, at least three (and as many as five) of whom who have reached different conclusions about whether the Court’s earlier rulings in the three cases Gorsuch cites “squarely controlled” the later ones. It seems telling that he doesn’t acknowledge that—especially given the Chief Justice’s specific, separate opinion in the NIH case.

Second, there is, of course, an easy way for Gorsuch and the rest of the justices in the majority to ensure that they’re providing guidance so clear that lower courts would be in obvious defiance for not following it: They could PROVIDE CLEAR GUIDANCE. I’ve made this point before (multiple times). But for the justices to complain about lower courts’ failure to read their minds is especially galling. No, the Court doesn’t have to provide full-throated explanations in these cases (although I continue to believe that it should). But writing little to nothing and then complaining about lower courts not correctly divining the justices’ intent strikes me as little more than hubris.

The Court’s Republicans want to have it both ways — talk about how these are just narrow smol bean orders dealing with very specific emergencies when people accuse them of abusing the emergency docket, but then demand they be treated by judges and public officials as fully binding decisions on the merits. And even more telling, when the orders offer little or no reasoning, the rule lower courts are supposed to infer in every case is “Trump wins.” Which indeed is the operative rule, as long as you don’t insist on rules being based in law.