Two weeks ago, Justice Brett M. Kavanaugh joined a conservative colleague in harshly criticizing lower-court jurists for ignoring Supreme Court orders.
But on Thursday, speaking to a ballroom of federal judges from the lower courts, Justice Kavanaugh struck a more conciliatory note.
“It’s a difficult job that each of us has,” he said, as he opened remarks during a luncheon panel at the annual Sixth Circuit Judicial Conference in Memphis, “particularly the trial judges who operate alone.” (In the federal system, district courts are the trial courts.)
He called trial-court judges “the front lines of American justice” and thanked them for helping to “preserve and protect the Constitution and the rule of law of the United States.”
Justice Kavanaugh’s remarks came at a time of increased strain on the Supreme Court’s relationship with district court judges, who have often moved swiftly to block President Trump’s policies with sweeping preliminary orders, issued before a case has been heard in full. The Supreme Court in turn in June imposed new limits on the lower courts’ power to issue orders that affect the whole country, known as universal injunctions.
The justices have also intervened in more than a dozen individual cases in ways that at least temporarily lift blocks imposed by lower court judges that would have stopped Mr. Trump’s policies from being implemented while their legality is litigated.
Justice Kavanaugh, whose mother is a retired state-court judge, told the judges gathered in Memphis that she had often impressed on him how difficult the job of a trial-court judge could be.
“It’s kind of like having the referee on the field, and then we’re sitting up in the replay booth, dissecting every frame of the replay,” he said. “Respect for the role of the trial judge as a single person who has to make quick decisions is something that I saw firsthand,” he added.
In the case on universal injunctions, Justice Kavanaugh wrote that the new limitations on district-court judges’ powers “will help bring substantially more order and discipline” to lawsuits over executive orders.
In a case late last month, he joined Justice Neil M. Gorsuch in rebuking judges who “defy” the Supreme Court by failing to apply its emergency orders, which, Justice Gorsuch wrote, “carry precedential weight.” That criticism, issued in a case dealing with cuts to National Institutes of Health grant funding, prompted a pointed apology from the bench by Judge William G. Young of Massachusetts, the Reagan-appointed judge at whom it was directed.
The increasing number of emergency orders issued by the Supreme Court have come in response to a flurry of executive orders issued by the Trump administration, which have then been challenged in court. The administration has sought the intervention of the Supreme Court in a series of cases, asking the justices to remove temporary blocks imposed by lower-court judges.
Critics call this growing segment of the Supreme Court’s caseload the “emergency docket” or “shadow docket,” because it involves less briefing, usually no oral arguments and generally less deliberation by the justices. On Thursday, Justice Kavanaugh said that “interim docket” was a more accurate term, as not all of the matters under review were actual emergencies, nor were the court’s orders necessarily its final word on the issues.
The interim docket’s rise, Justice Kavanaugh argued, has been driven by factors outside the Supreme Court’s control. In what he called “structural separation of powers,” presidents seek to advance their agenda despite inaction by Congress. That dynamic, he said, is “totally bipartisan,” predating Mr. Trump’s presidency.
So far, the Trump administration has filed about 20 emergency applications, many of which seek to remove blocks imposed by district-court judges. That total over the last seven and a half months exceeds the number of applications filed by President Joseph R. Biden’s administration during his four-year term.
Justice Kavanaugh’s remarks came in response to questions from Judge Joan L. Larsen and Judge Andre B. Mathis, who both sit on the U.S. Court of Appeals for the Sixth Circuit.
While he was careful to present the executive branch’s current relationship with the courts as more of a continuation than a rupture, Justice Kavanaugh appeared to acknowledge that the degree of political rancor in the Trump era was unusual. He suggested that judges, especially when writing dissents, should do what they could to lower the temperature.
“We’re modeling behavior for everyone,” he said, adding that that made civility and neutrality especially important “when the tone around us, in the public sphere, in the political world, on all sides, is loud.”
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