These are challenging times for the federal judiciary. Donald Trump’s second administration is stocked with unquestioning loyalists who share his indifference to democratic norms and the rule of law. Justice Department leaders disregard their ethical duties of candor and good faith toward the courts. Congress is missing in action as a coequal branch of government. This leaves federal judges as the lone constraint against Trump’s authoritarian tendencies.
How are they doing? It’s too soon to say with any confidence. Most cases are still in preliminary stages with the great majority of rulings coming from district courts. There are few appellate rulings, particularly decisions that address the merits of Trump’s actions. Nevertheless, a couple of initial observations seem relevant.
Judges are in a difficult position
Courts are not designed to be the sole check on presidential conduct. It’s a role they’ve been forced to assume by default given the absence of other traditional guardrails. (See above) Courts are necessarily reactive and limited to resolving legally justiciable disputes within their jurisdiction brought by parties with legal standing. They are deliberative; facts and legal arguments must be developed and weighed and the parties heard. This takes time. Their enforcement powers are limited. Our legal system generally assumes that parties will respect the courts and deal with them honestly. The Trump administration frequently challenges this assumption—stonewalling judges and engaging in obfuscation, outright lies, and other acts of bad faith.
Trump administration actions have already triggered a host of lawsuits and adverse lower court rulings
It’s hard to keep track of all the lawsuits challenging Trump administration actions, but they are well into the hundreds and growing. (One website lists over 370 such cases as of now.) Clearly, federal district courts aren’t reluctant to rule against Trump. This is true of both Democratic and Republican-appointed judges. One analysis shows the administration losing over 75 percent of cases decided in February through May 2025, with Republican-appointed judges ruling against the administration almost as frequently (72%) as Democratic-appointed judges (80%).
The administration has fared much better at SCOTUS
Acting through its emergency (aka “shadow”) docket, the Supreme Court has overturned or limited lower court injunctions against the Trump administration multiple times. As of July 28, the Court granted the Trump administration relief in 18 of 21 cases. Some of these rulings came with no explanation and often over the dissent of one or more liberal justices. The stark contrast between the Trump administration’s success rate in the lower courts and at the Supreme Court has received considerable attention from politicians, pundits, academics, and the media.
What accounts for the difference?
Here are some explanations that have been offered.
Selective appeals. Comparing win-loss percentages in the abstract is misleading.[1]See here and here for more detailed critiques of the numbers and related issues. The Trump administration has taken emergency appeals to SCOTUS in just 21 out of well over 100 adverse lower court rulings. (One source lists 165 such rulings as of mid July.) This suggests that administration lawyers are seeking emergency relief only in what they regard as their strongest cases. Also, most of these 21 cases turn on technical issues of standing, jurisdiction, and venue rather than the underlying merits. Indeed, Administration lawyers have deliberately avoided Supreme Court review of the merits.
Overzealous district courts. This, of course, is the Trump administration’s stock explanation. Stephen Miller railed against adverse rulings by “communist crazy judges.” Trump himself called for the impeachment of one judge who ruled against him, drawing a rebuke from Chief Justice Roberts. While these reactions are absurd, more rational voices maintain that the lower courts have indeed sometimes overreached. (See here and here.) One example is Trump v. AFGE, where a district court enjoined the administration from even developing plans for staff reductions. The Supreme Court stayed that injunction with only Justice Jackson dissenting. Forum-shopping may be a factor in some cases.
Political bias by SCOTUS. At the other extreme, many on the left who have long accused the Supreme Court’s conservative majority of political bias now suggest that the conservative justices are in the tank for Trump. (See here and here.) Even the New York Times calls this assertion “unfair.” At the very least, it’s premature. The real test will come when the Court reaches the merits of cases where Trump’s actions seem clearly unlawful, such as his birthright citizenship executive order, invocation of the Alien Enemies Act, and extensive use of tariff authority that the Constitution assigns to Congress. Rulings favoring Trump in these cases would fundamentally contradict jurisprudential principles the conservatives usually embrace and be real cause for concern.
Appeasement. Another theory is that the Supreme Court is reluctant to confront Trump and is carefully picking its battles with him out of fear that at some point he might defy it. (See here and here.) One pundit refers to this as “the appeasement theory.” However, it’s very doubtful that Trump would disregard SCOTUS decisions. While Trump has said outrageous things about lower court judges, his statements regarding the justices are restrained. He has expressed respect for the Court and said that he would never defy it. This is probably one instance in which Trump can be taken at his word since he would almost surely lose a showdown with SCOTUS. Public opinion across the political spectrum overwhelmingly supports the notion that court decisions must be honored, particularly those of the Supreme Court. Trump tends to retreat in the face of strong pushback.
Ideological leanings that transcend Trump and his policies. The conservative justices have a deeply held (albeit extreme) philosophical bias toward a strong executive. This was evident in their legally strained decision according presidents sweeping immunity from criminal prosecution. They have long leaned toward the unitary executive theory that underlies two emergency orders this year, Trump v. Wilcox and Trump v. Boyle. The conservatives also have a general (albeit malleable) preference for judicial restraint. An example of this was the Court’s decision in Trump v. CASA that largely rejected the issuance of nationwide injunctions against the administration by individual district court judges. It may also be reflected in stays of lower court injunctions on standing and jurisdictional grounds.
By contrast, liberal judges (and justices) are generally more results-oriented and willing to support aggressive intervention by the courts. Again, these are long-standing differences between liberal and conservative approaches to judging that predate Trump. Liberals may also prove less willing to grant the Trump administration and its lawyers the deference and presumption of regularity usually accorded to presidents and their legal representatives. (More on this below)
SCOTUS needs to do more to explain itself
One major difficulty in understanding the Supreme Court’s actions in Trump-related emergency docket cases is that the majority justices offer little help by way of explanation. Seven rulings provide no explanation whatever. The most egregious may be McMahon v. New York, in which the Court stayed a lower court injunction against the Trump administration’s 50 percent staff reduction at the Department of Education. It drew a stinging 19-page dissent from Justice Sotomayor joined by the other two liberals. The majority offered no explanation or response and failed even to state the grounds on which it acted.
This case cries out for an explanation. Justice Sotomayor’s dissent is quite persuasive on the merits. She notes that the district court developed an extensive record demonstrating that this massive downsizing was part of the administration’s de facto effort to abolish the Education Department without congressional authorization, and that the claim that it was merely about enhancing efficiency and reducing “bloat” was pure pretext. She also observes that the administration declined to offer a defense on the merits but “in a now-familiar move, it presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief.” The majority apparently chose something from this grab bag, but there’s no way of knowing what or why.
The Court does a disservice to litigants, lower courts, and the public by refusing to explain its actions. It’s hard to understand why it can’t offer at least a brief rationale, or at an absolute minimum cite the legal grounds for its action. Failure to explain its actions also does a disservice to the Court itself by damaging its credibility and providing fodder for its critics.
Outlook
It will take time, perhaps years, to fully assess the judiciary’s effectiveness in restraining Trump. In the meantime, a few general predictions can be offered.
The Supreme Court will surely play a pivotal role as key cases reach it for decision on the merits. Both conservative and liberal justices probably will generally follow their usual jurisprudential approaches and leanings in deciding them. If so, neither Trump nor his critics will be wholly satisfied with the results. Assuming the Court eventually decides them, Trump is likely to win the unitary executive cases and lose on the cases dealing with birthright citizenship, the Alien Enemies Act, and tariffs.
Other cases probably will produce mixed results as well. Trump is certainly more aggressive in testing the law (and the courts) than any of his predecessors. At the same time, Congress has granted presidents sweeping, often ambiguous statutory authorities. Many statutes apply based on presidentially declared “emergencies,” often subject to loosely defined conditions. Trump has relied heavily on such statutes.
One potentially decisive factor in a number of cases may be how the courts respond to Trump’s invocation of emergency powers. Typically, courts are quite deferential to such presidential assertions. However, they may not accord the Trump administration the usual benefit of the doubt given Trump’s serial dishonesty and his administration’s shameful pattern of disingenuous interactions with the courts.
Thoughtfully stated, Henry!
I might quibble only with your choice of a few words (“indifference to democratic norms and the rule of law” is probably more accurately stated by now as “outright hostility to democratic norms and the rule of law.”). And maybe I’d point out that your decision to make predictions “Assuming the Court eventually decides them…” the use of “eventually” means so much damage will have been done by the time “eventually” rolls around (if ever) that whatever SCOTUS decides in the end might not have any practical effect for the survival of American democracy and for the daily lives of its citizens.