The U.S. Supreme Court's "arrogance" is threatening to stall some of President Donald Trump's central plans, a legal expert said Monday.
A federal appeals court refused to halt a district court order last week against the president's mobilization of the National Guard in Illinois, undercutting his efforts to flood Chicago with troops, and Slate's Dahlia Lithwick and Mark Joseph Stern discussed how lower courts have been setting themselves against a Supreme Court that has largely been shaped by the president.
"We’re looking at judges across the ideological spectrum — Trump judges, Obama judges, Federalist Society judges, young judges, old and distinguished judges — who have never picked up their pen to speak out on political matters," Lithwick said.
"And across the board, they’re in agreement about what is happening. They’re naming it. They’re saying: I refuse to be gaslit today. And they’re calling it unlawful. I guess I’m wondering if it was an unforced error by the U.S. Supreme Court to treat lower courts — their findings of fact, their efforts to do hard doctrinal work under unbelievably challenging circumstances — with hostility or overt contempt."
"I find myself wondering if the court, particularly over the summer, made a lot of enemies by using dismissive rhetoric, and now in a lot of ways emboldening judges to say: Not today, Satan. Don’t lie to me," she added.
Stern agreed, saying that even some conservative lower court judges – such as Trump appointee Amy St. Eve – seem to be crafting their orders as checks against the higher court.
"It seems to me that the Supreme Court has fomented an 'us vs. them' dynamic with the lower courts," Stern said. "It’s presenting itself as the final arbiter of all facts on the ground, ignoring its obligation to defer to what the district court believes is happening in the real world. The Supreme Court has decided: We know everything, we have a crystal ball, we are omnipresent and omnipotent.
"That arrogance doesn’t just offend the lower courts’ egos — it undercuts the work they see as their duty, especially the careful establishment of facts. So when the Supreme Court treats fact-finding as optional, maybe judges like St. Eve respond by making it decisive. They’re not just fact-checking, they’re reality-checking."
"That, to me, shows that maybe the Supreme Court has screwed up here," Stern added. "Yes, the Trump administration might still win at SCOTUS. But it will lose weeks in the process. Those will be weeks during the appeal when the administration can’t send the National Guard into Chicago at this moment because lower courts are standing in its way. Maybe if the Supreme Court had shown more respect for the lower courts, then judges like St. Eve wouldn’t be pointedly deferring to a district court’s factual findings that essentially call Trump a liar.
"That’s just my guess. But if lower court judges really are turning against the Supreme Court, I think it does hurt the administration’s ability to run these shock-and-awe campaigns at a moment’s notice like they want to. Because lower courts can freeze them in their tracks."
