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Wednesday, June 14, 2017

The Lower Court Moment

The first months of the Trump Administration have been marked by lower federal courts receiving as much attention as they have ever received.  The Supreme Court takes longer to hear cases from a new administration than do lower courts as these cases work their way through the judicial pipeline.  The media has tried to gesture at Supreme Court cases related to what the Trump Administration is doing, but the relationship is purely indirect at this point.  Even if the Court had wanted to be involved last year and this year, the untimely death of Justice Antonin Scalia and the refusal to consider Merrick Garland meant the Court was not hearing cases and/or not deciding cases because it was deadlocked.  As this blog considers what this Supreme Court term means, the answer is likely to be that this is not a particularly important term, particularly given how little it means to what is happening in the other branches.

That leaves the lower federal courts to enter the judicial void.  District courts and courts of appeals have decided landmark cases related to the travel ban and to sanctuary cities.  Prominent lower court judges like Alex Kozinski and Stephen Reinhardt have used the occasion of their decisions related to actions by the Trump Administration to write aggressive opinions garnering public attention.  President Trump has been critical of the “political” nature of the courts, but so far he mostly means the Ninth Circuit.  One implication of this is that potential threats against judicial power are not peer-to-peer.  President Trump heads the executive branch but is not attacking the apex part of the judicial branch.

Posted by David Fontana on June 14, 2017 at 02:56 PM | Permalink

Comments

That will change soon enough....

Posted by: Orin Kerr | Jun 14, 2017 7:29:36 PM

This began with the marriage-equality cases. Cases were being filed all over the country (by necessity) and the Court played it coy, leaving a lot for the lower courts to do.

Posted by: Howard Wasserman | Jun 14, 2017 11:06:13 PM

This began with the marriage-equality cases. Cases were being filed all over the country (by necessity) and the Court played it coy, leaving a lot for the lower courts to do.

Posted by: Howard Wasserman | Jun 14, 2017 11:06:18 PM

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