A Recipe for District Judge Supremacy

In the present day, a divided panel of the Fifth Circuit granted a writ of mandamus in a dying penalty case. On this case, the district courtroom improperly exercised jurisdiction over a clearly moot case, after which refused to dismiss the case. Mandamus appears plainly warranted.

Decide Ho wrote a concurrence that speaks on to controversies of the day:

Our dissenting colleague asks: What is the rush? Even assuming that the district courtroom erred, the dissent contends that there is not any want for instant aid—simply let issues play out via “[t]he typical appellate course of.” Submit, at _ (Haynes, J., dissenting).

However that is chilly consolation to the hundreds of thousands of voters who took the time to take part within the democratic course of, solely to see their authentic efforts unlawfully undone by a single district decide.

If a district decide abuses the authorized course of in a hurried effort to thwart the lawful political selections of the citizens, appellate courts are nicely inside their proper to intervene and grant emergency aid.

The Supreme Courtroom did simply that final week in Trump v. J.G.G., _ U.S. _ (2025). There (as right here), a district courtroom presumed to grab management over a case of profound public curiosity that it had no lawful enterprise deciding, as a result of it belonged in one other courtroom. So the Supreme Courtroom intervened and took the case away from the district courtroom. See id. at _ (“Challenges to elimination below the [Alien Enemies Act] . . . should be introduced in habeas. . . . [J]urisdiction [in habeas cases] lies in just one district: the district of confinement. The detainees are confined in Texas, so venue is improper within the District of Columbia.”) (cleaned up).

Like our dissenting colleague right here, the dissenting Justices in J.G.G. urged delay. The dissent agreed with the bulk that the one factor at stake was deciding which district courtroom had the authority to resolve the case. See id. at _ (Sotomayor, J., dissenting) (noting that the dispute merely involved “which procedural automobile is finest located for the Plaintiffs’ injunctive and declaratory claims”). However the dissent maintained that there was no want for appellate courts to “rush” in and “resolve the difficulty now”—simply await an enchantment within the “strange course.” Id. at _ (Sotomayor, J., dissenting).

The Supreme Courtroom rejected the dissent’s plea for delay. The bulk understood that ready for an enchantment within the “strange course” would inadequately shield the federal government from the indignity of litigating within the incorrect continuing—to not point out unduly delay the expressed will of the individuals. Because the Courtroom put it, “[w]e see no profit in such wasteful delay.” Id. at _.

I most actually concur. When a district decide acts rapidly, but appellate courts are advised to not “rush in,” that is not a plea for judicial sobriety—it is a recipe for district decide supremacy.

I made related factors in a publish final month, titled Article III Inverted: The Supreme Courtroom Surrenders to Inferior Courtroom Supremacy.

But, in latest weeks, there was a change: District Courtroom judges are in cost. In case after case, federal district courtroom judges have issued a collection of non-appealable orders, whether or not styled as “administrative stays” or momentary restraining orders. Courts of appeals have then declined to disturb these rulings, discovering that TROs can solely be challenged via mandamus, and administrative stays are unappealable altogether. At that time, the federal authorities is compelled to run to the Supreme Courtroom in search of emergency aid. And what has the Supreme Courtroom carried out? They’ve kicked the difficulty again all the way down to the decrease courtroom, hoping that another person makes the powerful choices. Who’s operating the present right here?

Jack Goldsmith calls these ways “temporizing.” That’s, the Supreme Courtroom is just attempting to bide its time to seek out different methods of resolving the problems. Which may be proper within the quick run, however I feel we’re witnessing an inversion of Article III. The Supreme Courtroom is now not Supreme. Reasonably, the federal authorities is now topic to inferior courtroom supremacy. Decrease courtroom judges at the moment are assured they’ll problem any order they want towards the manager department, and the Supreme Courtroom won’t cease them. That is the judiciary run amok.

It’s usually joked that being a District Courtroom Decide is the closest factor to being a god. I feel federal judges within the beltway ought to learn Decide Ho’s concurrence just a few occasions.