A federal judge’s ruling for Harvard on Wednesday was significant in rejecting the Trump administration’s attempt to exert financial control over the educational institution. But just as notable was a footnote in the ruling that directly called out Supreme Court Justice Neil Gorsuch for his criticism of lower court judges.
“The Court is mindful of Justice Gorsuch’s comments in his opinion in APHA and fully agrees that this Court is not free to ‘defy’ Supreme Court decisions,” U.S. District Judge Allison Burroughs wrote in the ninth footnote of her 84-page ruling. “APHA” refers to the high court’s shadow docket decision last month in National Institutes of Health v. American Public Health Association, in which the majority backed the Trump administration’s bid to cut NIH research grants.
The NIH case divided the justices to such an extent that five of them wrote separate opinions. Joined by fellow Trump appointee Brett Kavanaugh, Gorsuch’s separate opinion cited multiple recent cases in which he said lower court judges bucked clear high court precedent. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” he wrote, lamenting that his court’s interventions “should have been unnecessary.”
He concluded that the phenomenon, as he saw it, underscored “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.’” He was quoting a 1982 Supreme Court ruling that warned of “anarchy” if lower court judges don’t follow high court precedent.
In an unusual move following the NIH ruling, the district judge in that case, Reagan appointee William Young, publicly apologized to the Trump appointees during a hearing this week. “Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States,” The New York Times reported Young as saying Tuesday.
Young reportedly said he “can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.” He said he “simply did not understand that orders on the emergency docket were precedent.”
Burroughs took a different approach in the Harvard case. The Obama appointee in Massachusetts turned the mirror back toward the justices in Washington, where, she wrote in her footnote, the high court’s recent emergency rulings on grant terminations “have not been models of clarity” and “have left many issues unresolved.”
She acknowledged that, like lower court judges, the justices are doing their best to resolve complex issues quickly. “Given this, however,” she wrote, it’s “unhelpful and unnecessary to criticize district courts for ‘defy[ing]’ the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”
Burroughs isn’t alone in publicly expressing frustration with her high court colleagues. NBC News published a remarkable report Thursday that cited a whopping 10 federal judges who said the justices should better explain their emergency rulings. That they went on record at all, even anonymously, highlights the dire state of the judiciary in Donald Trump’s second term — one in which Biden appointee Ketanji Brown Jackson recently complained that her colleagues on the high court invariably find a way to side with this administration.
The administration has vowed to appeal Burroughs’ ruling in the Harvard case, so Gorsuch may have an opportunity to respond — if he thinks that would be helpful, or necessary.
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This article was originally published on MSNBC.com