I Am Begging the Judge Who Apologized to Neil Gorsuch to Have Some Self-Respect

The same justices who aren’t writing real opinions are now getting publicly upset at lower court judges for not correctly divining what those opinions might have said.

Earlier this week, a federal judge in Massachusetts opened a hearing by doing something that federal judges almost never do: offer a sheepish, public apology. 

“Before we do anything, I really feel it’s incumbent upon me to, on the record here, to apologize to Justices Gorsuch and Kavanaugh, if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court,” said Judge William Young. “I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.”

Young was responding to a recent concurring opinion from, as you might expect, Justices Neil Gorsuch and Brett Kavanaugh, in a decision that allowed President Donald Trump to cancel roughly $800 million in National Institutes of Health research grants because he thinks science is woke. The case had started in Young’s courtroom, and Gorsuch took a beat to scold Young for a decision that, in Gorsuch’s view, so egregiously flouted other Supreme Court shadow docket orders that he had no choice to conclude that Young was being willfully insubordinate. 

“Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote. “When this Court issues a decision, it constitutes a precedent that commands respect in lower courts.” He went on to characterize Young’s decision as the “third time in a matter of weeks this Court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” and complained that all three interventions should have been “unnecessary,” which is basically an admission that Gorsuch got annoyed that someone made him work during what he hoped would be a relaxing end to his summer vacation.

(Photo by Cheriss May/NurPhoto via Getty Images)

I understand the various reasons Young felt the urge to apologize: Supreme Court justices sit above him on the org chart, and they called him out in public, which is a stressful and embarrassing experience in any workplace. Young, a Reagan appointee, has also spent the last four decades ensconced in an institution that venerates the Court and assumes that its justices in their magisterial wisdom are entitled at all times to a presumption of correctness.

All that said, I am begging William Young to have an ounce of self-respect here. Since Justice Amy Coney Barrett’s confirmation in 2020, this Court’s six-justice conservative supermajority has specialized in churning out shadow docket decisions that are sloppy, vague, contradictory, incoherent, or—in most cases—some combination thereof. On some occasions, the conservatives assert that these cases are binding on lower courts; on others, they emphasize that these orders are only temporary, and should not necessarily be construed as rulings on the merits. Their only real goal is giving the Trump administration what it wants; dealing with the practical implications of their decisions is almost always left for another day, or not at all.

Here, the trio of cases that Gorsuch says “squarely control” the law and should “command respect” from Young contain, at most, four paragraphs of analysis, as the law professor Steve Vladeck explains. One of the opinions includes no analysis at all. In context, Gorsuch is less upset that Young ignored “precedent” than he is upset that Young failed to correctly divine whatever Neil Gorsuch imagines the Court’s precedent to be.

I’ve written before about how tedious and annoying it is when the justices who do not bother to write real opinions turn around and whine about being “misunderstood.” It is no less tedious and annoying when the justices stuff their lower court colleagues’ opinions in the garbage, and then take gratuitous shots at those same judges for, in effect, not being sufficiently clairvoyant. William Young’s problem is not that he didn’t follow the law. It’s that the people who are in charge of “saying what the law is” were too lazy to actually do it.

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