The Temptation of the Inferior “Imperial Judiciary”

In this 250th year of our independence, the horizontal and vertical structure of our government should be well settled. Horizontally, the legislative branch makes the law; the executive branch enforces the laws; and the judicial branch interprets the laws. Vertically, Congress sits atop the lawmaking powers, not administrative agencies; the President sits atop the enforcement power, not the bureaucracy; and the Supreme Court sits atop the judiciary, not the inferior courts. Critically, the states have no role in enforcing or impeding federal law. Yet somehow, everything has gone topsy-turvy. Under the new order of operations, the President takes an action, states bring a lawsuit, a district court judge decides whether the policy goes into effect, and then two or three members of the Supreme Court promptly settle the issue with near finality.  We’ve come a long way from “School House Rocks.” 

During President Trump’s first term, the horizontal separation of powers were routinely breached as states and lower courts resisted virtually every presidential action. That much was well known. But with Trump 2.0, we have seen a novel inversion of both the horizontal and vertical separation of powers: lower court judges are resisting both the President and the Supreme Court. As Judge Kenneth K. Lee wisely warned, judges of the inferior courts should “not be seduced by the temptation of judicial resistance,” lest they inch towards an inferior “imperial judiciary.” 

President Trump, during his first term, faced an unprecedented barrage of legal challenges. The self-professed “legal resistance” launched a never-ending barrage of lawsuits to challenge virtually every facet of his administration. Worse still, many courts eagerly allowed these suits to proceed on the jurisprudential grounds that President Trump was not entitled to the same deference and regard as his predecessors. I described this jurisprudential shift as the “judicial resistance.” I was widely criticized for using this term. In the New York Times, Dahlia Lithwick and Steve Valdeck described it as a “dangerous myth.” But I think I was onto something.

President Trump is back in office, progressives still challenge virtually every action he takes, and judges in blue states continue to grant relief. No surprise there. But there is a new dynamic. Now, not only are lower court judges resisting the President, but they are also resisting the Supreme Court. In August, Justice Neil Gorsuch rebuked an attempted revolt in a lower court. Judge Brian Murphy of the District of Massachusetts managed to get reversed twice by the Supreme Court in the same case. “When this Court issues a decision,” Gorsuch wrote, “it constitutes a precedent that commands respect in lower courts.” Gorsuch added that “[t]his Court’s precedents, however, cannot be so easily circumvented.” 

Yet, in the wake of this ruling, Judge Murphy still appears not to have received the memo. He has once again ruled against President Trump in the same, long-running case. Judge Murphy acknowledged that he was “forced to wrestle with the fact” that the Supreme Court blocked his earlier ruling in the same case, but said he “could be missing something in the final analysis.” Do you think so? Professor Stephen Yale-Loehr described an ongoing “battle royale, both on the merits and on the relationship between lower courts and the Supreme Court.”

Judge Murphy is not alone. Other judges maintain that the Supreme Court’s rulings on the emergency docket are nonprecedential, and they do not understand how to follow them. Consider an amicus brief filed with the Supreme Court by nearly 200 former federal and state judges. These retired jurists stated that the Supreme Court’s “unexplained emergency decisions are not binding, or even especially informative, when lower courts exercise their judicial power in a different case involving different facts and circumstances.” Rather, unless the Supreme Court provides reasoning to the satisfaction of lower court judges, these “lower courts must determine the applicable law in the cases before them and apply that law to the different facts in those cases.”

This has never been how lower courts have operated. For more than two centuries, lower court judges have had to struggle and grapple with an absence of precedent and try to predict how the Supreme Court might resolve a novel issue. It’s not difficult to see how the Supreme Court will rule based on an emergency docket ruling. Of course, the Supreme Court can shift from the emergency docket to the merits docket, but the interim rulings largely speak for themselves. At this point, I think many lower court judges are being willful. In other contexts, they can figure out how to make rulings with far less guidance from the Supreme Court. They have the ability to determine what the Supreme Court is trying to convey, but instead, they just resist that conclusion.

It is a sign of our times that some sanity comes from, of all places, the Court of Appeals for the Ninth Circuit. President Trump suspended the Refugee Admissions Program. Unsurprisingly, the District Court blocked that policy, ordering Trump to admit people under the refugee program. In Pacito v. Trump (2026), a panel of the Ninth Circuit ruled that the President had the power to suspend the program.  

One member of the panel, Judge Kenneth K. Lee, wrote separately “to highlight . . . a recent trend that [he] fear[s] will erode the credibility of the judiciary.” Judge Lee acknowledged that “courts can and should intervene if the President oversteps legal bounds.” No one disputes that basic facet of judicial review. But Judge Lee warned his colleagues to “not be seduced by the temptation of judicial resistance.” Lee stated, “District courts cannot stand athwart, yelling ‘stop’ just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise.” 

Here, Judge Lee invoked the canonical Mission Statement from National Review. In 1955, William F. Buckley wrote that the magazine “stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” Buckley wrote in a precarious time when conservatism was long in the political minority, and conservatives were imploring a liberal locomotive to slow down. But today, while liberals are (temporarily) out of power, it is now progressive judges who are telling the President, and everyone else, to “stop.” 

The risk here is clear. Judge Lee warns that the “judicial resistance” will  “risk inching towards an imperial judiciary that lords over the President and Congress.” Here, Judge Lee invoked Justice Amy Coney Barrett’s ruling in Trump v. CASA (2025), in which she warned against “embracing an imperial judiciary.” We can take the lineage back even further. In Planned Parenthood v. Casey (1991), the landmark decision reaffirming Roe v. Wade, Justice Scalia declared, “The Imperial Judiciary lives.” Of course, the “Nietzschean vision of . . . unelected, life-tenured judges” Scalia warned against belonged to five members of the Supreme Court. Scalia would often yell “stop” to his colleagues. But now the resistance has spread to the inferior federal courts. 

This status quo is not sustainable. Either the President will retain his role as the chief of the executive branch, or he will not. Either the Supreme Court will retain its position as the Supreme Court, or it will not. I, for one, will resist being ruled by the inferior imperial judiciary. 

‍Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.

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