President Trump and his supporters are mounting increasingly noisy attacks on lower-court judges. But their claims combine shameless hypocri
Steve Vladeck at One First:
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the third episode dropping last night. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already): I already posted last Friday about the biggest Supreme Court-related news of the week (the six pending emergency applications from the Trump administration). Thus, I thought I’d use today’s issue for something different—taking a more holistic look at the public discourse surrounding the role of the federal courts vis-a-vis the current administration. With Speaker of the House Mike Johnson now suggesting that Congress should pursue legislation to simply “eliminate” those district courts that have ruled against the executive branch, and with both the House and Senate Judiciary Committees set to hold hearings this week on nationwide injunctions (at the latter of which I’ll be one of the witnesses), it seemed worth providing some actual data with which to analyze some of the claims out there about how many rulings against the Trump administration we’re seeing; in which courts these cases are being brought; and which judges are being assigned to hear them / are ruling against the executive branch. To spoil the punchline: unlike during the Biden administration, when challenges to federal policies were steered to a small handful of carefully selected (and Republican-appointed) district judges in the Fifth and Eighth Circuits, these cases are being brought in a far broader range of district courts and before a far broader (and more random) assortment of federal judges. And although judges appointed during the first Trump administration have been especially reticent to rule against the federal government to date, there are plenty of examples of adverse rulings by judges appointed by other Republican presidents. TL;DR: The data strongly suggests that the cause of this unprecedented flurry of judicial activity is neither the judges nor the courts; it’s the policies they’re reviewing.
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The One First “Long Read”: Straightening the Record on Anti-Trump Rulings
Before turning to the data that my superstar research assistant Alyssa Negvesky and I collected (and Alyssa collated), a note on our methodology: Our specific focus is not on every lawsuit filed against the federal government in the last 10 weeks. Rather, it is on the subset of cases in which there has been a request for a temporary restraining order (TRO) or a preliminary injunction (PI) against a policy undertaken or proposed by the Trump administration since January 20, 2025. There are plenty of cases against the government either (1) relating to pre-January 20 policies; or (2) not seeking this kind of interim relief. But insofar as the public criticisms are about the unprecedented flurry of TROs and PIs, it seems worth focusing on this subset. Within that framing, we’ve identified 67 cases (as of last Friday night) in which district courts have ruled either in favor of or against preliminary relief. For counting purposes, when multiple lawsuits produced a single, consolidated ruling, we count that as only one. And when a court has ruled on both a TRO and a preliminary injunction, we likewise count that as one case (and as a “grant” if the court granted a TRO or a PI). Overall, district courts have granted some type of preliminary relief in 46 of those 67 cases (68.7%). To jump to the bottom line, those 67 rulings have come from 51 different district judges appointed by seven different presidents sitting in 14 different district courts across eight circuits. (The grants have come from 39 different judges appointed by five different presidents and sitting in 11 different district courts across seven circuits.) Against that backdrop, here are some more specific responses to some of the claims that are floating around out there:
1. Are we seeing more rulings against Trump than against his predecessors?
Yes, but this answer has to be put into context. Last week, President Trump signed his 100th executive order—in only 65 days in office (as of last Wednesday). As that linked CBS story notes, the previous record for executive orders during a new President’s first 100 days was the 99 signed by President Franklin D. Roosevelt in 1933. President Biden, in contrast, signed only 37 orders during the same time period (and Trump signed only 17 during the first 65 days of his first term). In other words, we’ve seen a much greater amount of action by Trump over the first 10 weeks of his presidency—which would correlate to more judicial challenges even if those actions weren’t as legally controversial as so many of them have been. Yes, courts have been busier than their predecessors, but the White House has been even busier—a fact it has been trumpeting rather loudly. (Congress, meanwhile has not; since January 3, it has enacted a total of four statutes—even though at least some of these legal challenges could surely be mooted by statutes clearly providing the President with the authority he claims he already has.)
2. Are the plaintiffs in these cases “judge-shopping”?
No. With one fleeting exception,1 none of the 67 lawsuits we found in which interim relief has been sought against Trump administration policies have been filed in “single-judge divisions” (where a case has a 100% chance of being assigned to a specific judge). This kind of “judge-shopping” is distinct from “forum-shopping,” in which litigants with options pick where to file based on various factors, perhaps including the overall composition of the local bench. At least with regard to finding a way to bring a case so that a specific, hand-picked judge will be assigned to decide it, we haven’t seen any of those in the cases in our dataset. That absence is in noticeable contrast to a lawsuit the Justice Department itself filed just last Thursday—seeking a declaratory judgment that it should be allowed to terminate collective bargaining agreements between eight agencies and dozens of affiliates of the American Federation of Government Employees. Where did the Trump administration file this nationwide suit? In the Waco Division of the Western District of Texas—where it had a 100% chance of being (and has been) assigned to a Trump-appointed district judge, and where any appeal goes to the Fifth Circuit. It’s the height of irony that the only judge-shopping we’re seeing in Trump-related cases is … from Trump. Indeed, the overwhelming majority of cases in our dataset were filed in courts in which the maximum chance of drawing any specific judge is less than 15%. That’s a dramatic shift from litigation against the Biden administration—during which an many (if not most) of the suits challenging nationwide policies were brought in a handful of district courts, including both single-judge divisions in Texas and Louisiana and other courts in which the chances of drawing specific judges were 50% or higher. Although requests for “nationwide” relief have been an increasingly common feature of litigation against the federal government since late in the Obama administration, something about nationwide relief hits differently when it’s coming from multiple randomly assigned judges spread across the country (like the multiple nationwide injunctions against the birthright citizenship executive order), or even a single randomly assigned judge in the nation’s capital, versus from a judge in the 24th-largest city in Texas whom the plaintiffs specifically chose to hear the case. One other relevant data point on this: One of the only federal district courts in a “blue” state that even has single-judge divisions is the District of Massachusetts—which has single judges in the “Western” (Springfield) and “Central” (Worcester) divisions. But on February 11, that court quietly changed its case assignment rules so that any suit seeking nationwide relief against the federal government and filed in one of those divisions will be randomly assigned across all of the district court’s 20 judges. In other words, the Massachusetts district court had the opposite reaction to the Judicial Conference’s March 2024 anti-judge shopping policy from the reaction we saw from the Northern District of Texas—to avoid the possibility of having its case assignments manipulated by litigants, rather than to lean into it.
3. Are the plaintiffs in these cases forum-shopping?
Yes, but again, to a lesser degree than we saw from 2021-25. The 67 cases Alyssa and I identified have been filed in 14 different district courts across eight circuits. The clubhouse leader is unquestionably the D.C. federal district court (where 31 of the 67 cases have been filed).2 But no other district court is responsible for more than 1/6 of the cases that have thus far produced rulings on TROs or PIs. (And it’s hard to get too exercised about suing the federal government in the forum in which … the federal government is headquartered.) That’s a rather striking contrast to lawsuits challenging Biden administration policies, the majority of which were filed in five district courts across two circuits (the Fifth and Eighth). To help underscore this point, the federal government’s six pending emergency applications in the Supreme Court are challenging rulings by six different judges in five different district courts in four different circuits. The location of those courts definitely supports claims of forum-shopping. But the number of different courts drives home how much more the “shopping” has been distributed both geographically and ideologically than what was true as recently as 10 weeks ago.
4. Which judges are ruling against Trump in these cases?
One of the most noxious claims out there is that the rulings against President Trump are coming only from “rogue,” “far-left” judges. Leaving aside the extent to which not all judges have the same ideological commitments as the president who appointed them (and that a ruling isn’t “rogue” just because you don’t like it), the data is, once again, to the contrary. Roughly one of every five rulings halting a Trump policy (9/46) has come from a Republican-appointed district judge—including judges appointed by President George W. Bush and President Reagan. (We’ve also seen visible examples of Republican-appointed circuit judges voting against DOJ requests to block district court rulings, like Judge Henderson in the Alien Enemy Act case, but our focus has been on the district courts.) I don’t mean to overstate the point; the vast majority of rulings against Trump (37/46) have come from judges appointed by Democratic presidents. But those judges are also responsible for 10 of the 21 denials of preliminary relief in our dataset. Because of the forum-shopping described above, more of these cases overall are ending up before Democratic-appointed judges—which impacts both the numerator and the denominator. To help make clear how the party of the President who appointed the relevant judge is not driving these rulings, of the 20 cases in our dataset that were assigned to Republican-appointed district judges, nine of those saw grants of a TRO and/or PI. Thus, even looking at the cases before Republican-appointed district court judges alone, plaintiffs have still obtained preliminary relief in 45% of the cases in which they’ve sought it. That’s … high. One last point on the data: The only subset of appointees whose rulings have been uniform are district judges appointed by President Trump. Of the 67 cases we identified, eight have been assigned to judges Trump appointed between 2017 and 2021. In all eight of those cases, the district court denied interim relief. Whatever that says about Trump appointees, note what it says about judges appointed by previous Republican presidents: Of the 12 cases in our dataset assigned to such judges, nine of them have produced a TRO against the challenged policy, a PI, or both. I understand that there are those to whom you literally can’t be a Republican if you do anything to oppose Trump. But any claim that judges like John Bates, Richard Leon, and Royce Lamberth are liberal squishes betrays the claimant’s utter lack of seriousness.
5. Are judges deliberately insulating their rulings against appellate review?
Finally, we’ve also seen complaints that district judges in these cases are taking steps to deliberately insulate their rulings from appellate review—including by issuing (usually un-appealable) TROs instead of (appealable) preliminary injunctions. Frankly, this claim bespeaks a fundamental misunderstanding of how time-sensitive civil litigation works. TROs are supposed to come first, and are supposed to be limited in duration—which is a big part of why they’re not generally subject to appeal. We haven’t identified a single case in which a district court extended a TRO more than once—or has otherwise done anything inconsistent with the provisions of Rule 65(b) of the Federal Rules of Civil Procedure. If anything, the dramatic effects of many of the Trump administration’s policy initiatives (along with the government’s deceptive litigation behavior)3 have provided unusually strong arguments in favor of TROs—especially in contexts in which, without urgent relief, the government may be able to take actions that irreparably and irrevocably harm the plaintiffs.
But perhaps the best evidence against this claim is that even some of the more widely criticized TROs have not actually been insulated from appellate review; in the Alien Enemy Act case, for example, the D.C. Circuit held that it did have jurisdiction to stay Chief Judge Boasberg’s TROs, even though it declined to do so.4
The only (relatively) new development we’ve seen in these cases is a handful of district courts issuing “administrative stays” at the very outset of litigation—prior to their issuance of a TRO. My own view, as I’ve suggested previously, is that the power of district courts to issue such rulings is not well established. But, as relevant here, none of the pre-TRO orders entered in those cases lasted more than a couple of days—in rather striking contrast to the “administrative stays” that a Texas district judge used last year to keep a Biden administration immigration policy frozen on a nationwide basis for more than two months. The point is not that two wrongs make a right; it’s that the behavior by the judges in the cases Alyssa and I have identified was neither invented, nor even expanded, specifically in response to Trump.
Steve Vladeck wrote a very good piece detailing the record of judges that ruled on anti-Trump injunctions. It included judges appointed by both parties.
