In the short time since the Supreme Court broke for the summer, certain liberal judges (district court and Supreme Court) continue to generate headlines that raise red flags. On April 18, Judge Brian Murphy of the District of Massachusetts issued a preliminary injunction barring the government from deporting aliens who were convicted of violent crimes to South Sudan, which was not their country of origin, without an opportunity to explain their likely treatment there. On June 23, the Supreme Court stayed the injunction pending appeal, over the dissent of Justices Sotomayor, Kagan, and Jackson. But later the same day, Judge Murphy nonetheless ruled in a minute order that the aliens were protected from removal based on a May 21 remedial order specifying procedures for the government to follow regarding the litigants. This was a transparent attempt to defy the Supreme Court, which on July 3 reinforced that it had in fact stayed the April 18 preliminary injunction—and that the “remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Although she had earlier been in dissent, Justice Kagan explained in a concurring opinion that given how the majority had ruled, “I do not see how a district court can compel compliance with an order that this Court has stayed.” Incredibly, Justice Sotomayor, joined by Justice Jackson, dissented in an opinion that railed against the administration while effectively, as The Wall Street Journal editorialized, endorsing a “judicial mutiny.”
On July 7, another Massachusetts district court judge, Indira Talwani, issued a temporary restraining order directing the Department of Health and Human Services to “take all steps necessary to ensure that Medicaid funding continues to be disbursed” to Planned Parenthood. That directly defied the defunding of the abortion behemoth required by the just-enacted “Big Beautiful Bill.” The judge did not even bother to accompany her order with an opinion explaining her reasoning. Planned Parenthood’s complaint alleged that the law is a bill of attainder and violative of the First and Fifth Amendments. As legal arguments go, that is bonkers. Under fire, Talwani amended her order but did herself no favors as the two paragraphs she provides of constitutional analysis make only a garbled attempt to agree with at least some of the First and Fifth Amendment claims. Adding insult to injury, she included a bond of merely $100 to compensate the government if it was wrongfully enjoined, reasoning that it would be paying for that medical treatment anyway and would suffer only nominal damages. Soon after the Supreme Court established in Medina v. Planned Parenthood South Atlantic that the days of the abortion distortion are over, Judge Talwani’s conduct presents a potent combination of contempt for the high court and judicial activism so rootless that it would have made Justice Blackmun blush.
On July 8, Justice Jackson again raised eyebrows with her lone dissent in Trump v. American Federation of Government Employees, in which eight justices voted to stay another activist district court (this time in California) that had enjoined the Trump administration from planning for a large-scale scale reduction in force. Jackson dissented with an argument against the administration’s authority to pursue such plans in the absence of congressional authorization. But her position disregarded what was actually before the Court. None other than Justice Sotomayor explained in a concurrence that the challenged executive order directed agencies to conduct reductions “consistent with applicable law,” and the reduction plans themselves are not before the Court.
The Supreme Court seems to be fed up with attempts by district judges to wholesale block executive actions they disagree with. I would have thought they made this clear already, but it’s obvious some judges didn’t get the memo. So it seems the Court is going to have to keep stepping in until they get the point.
Justice Jackson seems least interested in joining most of her colleagues in this endeavor, and her recent statements at public forums suggest why. At the Global Black Economic Forum, she said that she enjoys being on the Court because she has the opportunity to share her opinions with the public. But her job is to uphold the law and defend the Constitution, not share how she “feels” about specific issues brought before the Supreme Court. And at an Indianapolis Bar Association luncheon, she replied to the question “What keeps you up at night?” with “the state of our democracy. I would say that I am really very interested in getting people to focus and to invest and to pay attention to what is happening in our country and in our government.” What is most shocking about this statement is how blatantly political it is. The role of a Supreme Court justice is to apply the law, not push a political ideology. And of course, that is also the role of lower court judges.
But the reality is that the nation’s most liberal judges are showing how poorly they handle judicial power, no matter where they sit.