WASHINGTON — Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried the practice is undermining the judiciary at a sensitive time.
Some judges believe the Supreme Court, and in particular Chief Justice John Roberts, could be doing more to defend the integrity of their work as President Donald Trump and his allies harshly criticize those who rule against him and as violent threats against judges are on the rise.
In rare interviews with NBC News, a dozen federal judges — appointed by Democratic and Republican presidents, including Trump, and serving around the country — pointed to a pattern they say has recently emerged:
Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.
And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.
Emergency rulings used to be rare. But their number has dramatically increased in recent years.
Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.
“It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs.”
All 12 judges spoke on condition that they not be identifiable, some because it is considered unwise to publicly criticize the justices who ultimately decide whether to uphold their rulings and others because of the risk of threats.
Judges are increasingly targeted, with some facing bomb threats, “swattings” and other harassment. Judges especially involved in high-profile cases — and their families — have reported receiving violent threats.
As of June, the U.S. Marshals Service, which protects judges, had reported more than 400 threat investigations this year. There has been a steady rise of such threats in recent years, from 224 in fiscal year 2021 to 457 in fiscal year 2023, according to congressional testimony given by the Marshals Service. An agency spokesman declined to provide updated numbers.
When judges issue rulings the Trump administration does not like, they are frequently targeted by influential figures in MAGA world and sometimes Trump himself, who called for a judge who ruled against him in a high-profile immigration case to be impeached. White House deputy chief of staff Stephen Miller has said the administration is the victim of a “judicial coup.”
The judge who said the Supreme Court justices are behaving inexcusably has received threats of violence and is now fearful when someone knocks on the door at home.
If major efforts are not made to address the situation, the judge said, “somebody is going to die.”
With tensions so high, four of the judges said they believe the Supreme Court and specifically Roberts, the head of the judiciary, should do more to defend the courts.
The Supreme Court, a second judge said, is effectively assisting the Trump administration in “undermining the lower courts,” leaving district and appeals court judges “thrown under the bus.”
The Supreme Court has an obligation to explain rulings in a way the public can understand, a third judge said, adding that when the court so frequently rules for the administration in emergency cases without fully telling people why, it sends a signal. The court has had strong left-leaning majorities in the past, but what is different now is the role emergency cases are playing in public discourse.
The Supreme Court, that judge said, is effectively endorsing Miller’s claims that the judiciary is trying to subvert the presidency.
“It’s almost like the Supreme Court is saying it is a ‘judicial coup,’” the judge said.
Not all judges who were interviewed shared that view. Some were more reluctant to criticize the justices.
A judge appointed by President Barack Obama said that while the Supreme Court could do more to explain itself, some lower court judges had been out of line in blocking Trump policies.
“Certainly, there is a strong sense in the judiciary among the judges ruling on these cases that the court is leaving them out to dry,” he said. “They are partially right to feel the way they feel.”
But, the judge added, “the whole ‘Trump derangement syndrome’ is a real issue. As a result, judges are mad at what Trump is doing or the manner he is going about things; they are sometimes forgetting to stay in their lane.”
The ‘shadow docket’
In 2015, a University of Chicago Law School professor came up with a catchy term for a hitherto obscure part of the Supreme Court’s docket, in which cases are fast-tracked outside the court’s normally monthslong appeals process: the “shadow docket.”
Those are emergency cases handled much more quickly than normal — there are rarely oral arguments, and decisions can come within days with little or no explanation, while argued cases always include some reasoning that varies from a handful of pages to dozens to, in rare cases, the length of a short book.
The shadow docket has exploded in recent years, with the first Trump administration turbo-charging the trend by rushing to the Supreme Court when lower court rulings blocked nationwide policies. An early example was Trump’s travel ban on people entering the United States from mostly Muslim-majority countries, which the Supreme Court allowed to partly go into effect in June 2017.
Before the recent surge, most emergency cases involved death row inmates’ attempts to block their executions at the eleventh hour, and the court would normally handle them via terse orders with no explanation. But the increase in cases in hot-button nationwide disputes, sparked in part by presidents of both parties relying more on executive orders than passing legislation via Congress, has put greater scrutiny on the court’s reasoning.
The growing reliance on the shadow docket has drawn criticism from legal experts about the lack of time and process the Supreme Court spends on what can be incredibly consequential decisions.
Since Trump took office again in January, his administration has asked the Supreme Court 23 times to block lower court rules on an emergency basis.
The court has granted the government’s emergency requests in 17. It rejected the government in two cases, while three other cases were resolved without decisions, and one request is pending.
Notable victories include rulings that curbed lower-court injunctions that had blocked his contentious plan to end automatic birthright citizenship and his efforts to fire federal workers. The Supreme Court has also overturned lower court rulings that would have hindered Trump’s tough immigration policies. It has, though, pushed back against the administration in two other high-profile immigration cases.
By comparison, the Biden administration filed 19 applications during its entire four-year term, with the court granting its requests 10 times, according to Steve Vladeck, a Georgetown Law professor who has written a book about the subject.
An NBC News review of the Trump decisions showed that five of the 17 cases overturning lower court rulings included no substantive reasoning at all. Seven of the others included less than three pages of explanation. That critique extends back to the Biden administration, when the court failed to explain its decisions in eight out of the 10 wins for the government.
“Judges in the trenches need, and deserve, well-reasoned, bright-line guidance,” a judge said. “Too often today, sweeping rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide.”
Ten of the judges, both Republican and Democratic appointees, agreed the court’s lack of explanation is a problem. Judges must follow Supreme Court precedent, but they can find it difficult to assess what the justices are asking them to do.
That was the situation in which Maryland-based U.S. District Judge Matthew Maddox found himself this year after Trump fired three members of the Consumer Product Safety Commission.
Like certain other federal agencies, it was set up by Congress to be insulated from political pressures. While the president could nominate members to fixed terms, he could not fire them except for “neglect of duty or malfeasance.”
On paper, Maddox’s job was an easy one: As a district court judge, he has to follow the Supreme Court’s previous rulings. In 1935, in a case called Humphrey’s Executor v. United States, the Supreme Court upheld a law preventing the president from firing members of the Federal Trade Commission — a setup similar to the CPSC’s — without cause.
The Supreme Court’s current conservative majority has undermined that precedent in recent years, but, crucially, it has not overturned it.
But before Maddox issued his decision, the Supreme Court on May 22 allowed Trump to fire members of two other independent agencies with similar restrictions, the National Labor Relations Board and the Merit Systems Protection Board.
The Supreme Court’s two-page order was paltry, sending mixed messages by allowing the firings while expressly saying the court would wait to decide whether to overturn Humphrey’s Executor.
Maddox was left to grapple with how that decision applied to his case. He ultimately rejected the Trump administration’s arguments in two separate rulings in June, concluding that he was bound by the 1935 precedent.
“Humphrey’s Executor remains good law,” he wrote.
But Maddox did not have the final word. The Trump administration once again quickly turned to the Supreme Court, which granted its emergency request to allow the firings a month later.
The case was “squarely controlled” by its May decision, the conservative majority said in a one-page decision overturning Maddox.
In both cases, the court’s three liberal justices dissented, with Justice Elena Kagan writing in the second one that the majority had “all but overturned” Humphrey’s Executor despite never having heard arguments or issued a full ruling on the underlying legal question.
Kagan spoke about the difficulties lower court judges face in such cases at a legal conference in Monterey, California, this summer.
She referred to a different case in which Massachusetts-based Judge Myong Joun issued a ruling that blocked Trump administration plans to downsize the Education Department. The administration quickly appealed to the Supreme Court, which ruled in favor of the government.
Kagan noted that the case raised several legal issues, including what authority Joun had to step in, but the Supreme Court’s terse order did not explain on what grounds it was blocking his decision. The only writing was from liberal Justice Sonia Sotomayor, who penned an 18-page dissent.
“What’s that court supposed to think?” Kagan asked, referring to Joun. “It’s just impossible to know, and that puts the [lower] court in a very difficult situation.”
But there is no unanimity within the Supreme Court about that issue. Conservative Justice Neil Gorsuch wrote a concurring opinion last month when the court ruled in favor of the Trump administration in another emergency case that was scathing about what he perceived as lower court judges’ failure to follow the Supreme Court’s orders.
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” he wrote.
A judge who spoke to NBC News expressed frustration that judges’ role in the judicial system is being undermined by the Supreme Court’s frequent interventions, before there has been extensive litigation and, potentially, a trial.
“It’s very discouraging,” the judge said. “We are operating in a bit of a vacuum.”
While agreeing that “it would be nicer” if the court gave fuller explanations in emergency decisions, another judge said it is too early to really cast judgment on how the Supreme Court has responded to the Trump administration, with litigation still ongoing in most cases.
It is up to the Supreme Court whether it wants to issue detailed decisions in emergency cases, the judge added, calling it “entirely a matter of grace.”
Lower court judges know that being overturned by the Supreme Court is part of the job, but the judge who said the justices have an obligation to explain themselves added that they can disagree with a lower court’s legal reasoning while also defending it as a good-faith attempt to address complex legal issues.
The judge suggested the Supreme Court should say, “Let’s be clear, it’s not some crazy opinion, and this judge is not a monster.”
Head of the judiciary
As chief justice, Roberts has a dual role. As well as being one of the nine justices on the Supreme Court, he is head of the U.S. Judicial Conference, the administrative arm of the courts, where he represents the interests of the judiciary as a whole.
Four judges who spoke to NBC News think Roberts, a conservative about to mark 20 years in the position, could do more to speak out when Trump allies complain about judicial overreach.
Roberts did issue a rare statement in March pushing back against Trump’s call to impeach the judge who ruled against the administration in the major immigration case.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said.
He also defended the judiciary in his annual end-of-year statement in December, in which he referred to an increase in threats to judges in recent years and called out “illegitimate activity” that seeks to undermine the judiciary.
But the judge who said the Supreme Court’s frequent interventions are discouraging added that while Roberts may sometimes step up, “the conduct is undermining it,” referring to the court’s regular unexplained rulings in favor of Trump.
Roberts, who generally does not seek public attention, has long been known as an institutionalist who looks out for the interests of the Supreme Court, but several judges wondered whether that instinct extends to lower courts.
“He should be doing everything he can internally to insist on ordinary process,” the judge who has received threats said in reference to the emergency cases. Roberts’ end-of-year report was “not enough,” the judge added.
Another judge said: “He hasn’t been completely absent, and he’s trying to do the best he can. I wish he would be a little bit more assertive and aggressive.”
Other judges are less willing to criticize Roberts.
“I do sympathize with the predicament the court is in, doing a dance with the administration, and particularly I’m sympathetic to Roberts,” the Obama-appointed judge said.
A district court judge indicated it was counterproductive to criticize Roberts or the court when the judiciary as a whole is under attack.
“We need to be united, not divided,” the judge said.
Roberts did not respond to a request for comment.
A federal judiciary employee familiar with Roberts’ institutional role said there are various reasons he is restrained from speaking out more. If he did, the employee said, the force of what he said would be diluted through repetition, and, with litigation pending in lower courts, he could face accusations of bias or calls for his recusal when he comments on specific cases.
“The chief justice has spoken out strongly against attacks on judges in various contexts, but he has been appropriately judicious in his statements, focusing on institutional norms and not personalities,” the employee said.
“The chief justice can’t be the public spokesperson against the administration and still do his job of deciding cases, including matters that involve the administration,” the person added.
So far, the only recent public defense from the court has come from conservative Justice Brett Kavanaugh, who said at a legal conference in Kansas City, Missouri, last month that the court has been “doing more and more process to try to get the right answer” and offers more explanation in such cases than it did in the past. In the birthright citizenship cases, for example, the court heard oral arguments and issued a 26-page opinion explaining the decision.
One reason for keeping emergency decisions short, Kavanaugh said, is that the justices have to make decisions but do not necessarily want to pre-judge how cases will ultimately be decided when they come back to the court via the normal appeals process.
“There can be a risk … of making a snap judgment and putting it in writing,” even though it might not reflect the court’s ultimate conclusion further down the line, he said.
While the Supreme Court wrestles internally with some of the criticism, lower court judges are increasingly focused on their own safety.
Judges have been calling for increased security in light of the frequent threats facing those who rule against or criticize the Trump administration, with some wondering whether the Supreme Court justices, who have faced harassment and threats, too, realize how vulnerable they are.
While the Supreme Court has its own police department to assist with security, other judges rely solely on the Marshals Service, which is under the control of Trump’s Justice Department, creating what some view as a potential point of vulnerability if tensions between the judiciary and the White House continue to mount.
The judge who reported receiving threats said that even if the Supreme Court is insulated from some of the violent rhetoric and believes the Trump administration will follow its rulings, the rule of law cannot function if it does not defend the lower courts.
“If the entire foundation falls out from under your house, it does no good to have a really well-insulated attic,” the judge said. “It sure would be nice if someone had our backs.”
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