Someone Is Defying the Supreme Court, but It Isn't Trump

New York Times

3 days ago

Since President Trump returned to the presidency for a second term, legal scholars and political writers have wrestled with a particular preoccupation: What if he defies court orders?
When actual examples of the administration violating court orders turned out to be hard to find, and contestable in any given case, some commentators broadened the notion of defiance to include so-called malicious compliance (or legalistic noncompliance). The idea here is that even if the president or his agents did comply with the terms of court orders, however unreasonable, they might be doing so in bad faith, with the covert motive of actually evading or circumventing the point of the order.
The issue of defying court orders is still with us — but it has taken a twist. Now the defiance is coming from inside the judicial branch itself, in the form of a lower-court mutiny against the Supreme Court. District Court judges, and in some cases even appellate courts, have either defied orders of the court outright or engaged in malicious compliance and evasion of those orders, in transparent bad faith.
In the past decade or so, increasing judicial overreach has caused harm to our constitutional order by limiting the ability of the executive branch to implement the program it was elected by the American people to pursue. It has been a scourge for both recent Republican and Democratic presidents, and it may provoke extreme measures to restore order. The recent defiance goes even further, threatening to damage the internal integrity of the judiciary, which ultimately relies on lower courts to follow the Supreme Court's direction.
Consider Judge Brian Murphy of the Federal District Court in Massachusetts. Judge Murphy issued a preliminary injunction against the transfer of removable aliens to third countries, in cases in which the transfer was expressly permitted by federal law. So far, this was just an ordinary example of judicial overreach.
But after the Supreme Court issued an order to stay — that is, to stop — the preliminary injunction while litigation proceeded (over a dissent by Justice Sonia Sotomayor), Judge Murphy went beyond overreach. He decided that his order enforcing the injunction that the court had stayed nonetheless remained in effect — a proposition for which his only cited authority was the dissent from Justice Sotomayor. This seemed to be malicious, whether or not it counts as 'compliance' at all. The Supreme Court, with the notable concurrence of Justice Elena Kagan, then had to stay this second order and explain that Judge Murphy's renewed effort was also illicit.
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