SCOTUS Fostering Short-Order Cook Atmosphere in Trump Cases

A blistering order by a federal appellate judge last week laid out the grim, short-order cook state of jurisprudence in the Trump era.

It is unlikely any of the hundred or so judges handling the coast-to-coast deluge of lawsuits against the Trump administration has ever deigned to enter a Denny’s restaurant—at least since undergraduate school.

After all, Ivy League-educated jurists such as Beryl Howell and Jeb Boasberg and Allison Burroughs—to say nothing of Chief Justice John Roberts—would never share dining space with everyday Americans chowing down on cheap eats at a chain restaurant famous for its “Moons Over My Hammy” sandwich. (My favorite go-to at 2am in Mattoon, Illinois in the late 1980s.)

No doubt on any given day one of the more than 1,4000 Denny’s restaurants is filled with supporters of Donald Trump—lots of truckers and farmers wearing red MAGA hats without a foie gras terrine in sight.

Which is why it must have offended the oversized egos of the aforementioned judges and their ilk when an appellate judge compared their vaunted courtrooms to the iconic always-open diner. In a blistering rebuke of the Supreme Court, James Ho, a judge on the Fifth Circuit appellate court, slammed the court’s majority for its unprecedented involvement in a case related to the president’s signature deportation policy. “We seem to have forgotten that this is a district court—not a Denny’s,” Ho wrote in a May 20 order responding to the Supreme Court’s reversal of an earlier decision by Ho’s court. “If this is going to become the norm, then we should say so. If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua—and we should stop pretending that Lady Justice is blindfolded.”

His opprobrium was aimed at SCOTUS’ criticism of Ho’s colleague, U.S. District Court Judge James Hendrix, for allegedly slow-walking proceedings in a lawsuit attempting to halt the removal of Venezuelans tied to TdA, designated a foreign terrorist organization by the Trump administration. In March, the president signed the Alien Enemies Act proclamation authorizing the immediate deportation of TdA members here illegally.

Rewarding Bad Behavior

Since then, the American Civil Liberties Union has filed numerous lawsuits on behalf of the illegal gang bangers. On April 16, one such lawsuit landed on Hendrix’s docket in northern Texas. Despite Hendrix’s immediate attention to the case—and the fact Hendrix at the time was presiding over a criminal jury trial and handling three other horrific child sex abuse cases (here, here, and here)—his timing wasn’t good enough for the ACLU.

After Hendrix denied the group’s first demand for a temporary restraining order on April 17 while setting an aggressive briefing schedule, which coincided with Easter weekend, the ACLU attempted to bully the judge into acting faster. ACLU attorney Lee Gelernt left an inappropriate voicemail for Hendrix that evening demanding that he “issue an order to have them not removed.”

Shortly after midnight the next day, the ACLU filed a second motion for a restraining order. Twelve hours later, on Good Friday, Gelernt gave Hendrix an ultimatum: decide on the second motion by 1:30 p.m. or the ACLU would go to the Fifth Circuit appellate court for relief.

Gelernt did just that at 3pm, effectively stripping the matter from Hendrix’s hands.

Hendrix, however, made his thinking in the case known. “These motions [filed by the ACLU] raise a series of complicated questions about habeas law, constitutional law, federal courts, and federal jurisdiction,” Hendrix, a Trump appointee, said in an April 18 opinion noting that the appeal divested him of jurisdiction in the case. “The Court could not in good faith require the respondents to respond in any time less than 24 hours, especially since the petitioners filed the motion after midnight and today is Good Friday, an important day of observation for many. The Court was acting with utmost speed to resolve these motions in a timely manner, but matters of such importance and complexity for all involved required some level of care. And some level of care takes time.”

His wise words apparently did not sway the majority of Supreme Court justices; SCOTUS halted AEA deportations in an April 19 order in response to a separate ACLU emergency motion. And on May 16, the Supreme Court in a 7-2 decision (Alito and Thomas dissented) kicked the matter back to the Fifth Circuit court.

But in doing do, SCOTUS misrepresented the facts of the case, accusing Hendrix of “inaction…for 14 hours and 28 minutes [which] had the practical effect of refusing an injunctions to detainees facing an imminent threat of severe, irreparable harm.” The appellate court, SCOTUS wrote in an unsigned opinion, must now determine whether the AEA applied to the illegals and what sort of notice they must receive prior to deportation. (Oral arguments are set for June 30.)

Would You Like Fries with that Garbage Opinion?

Ho not only defended Hendrix’s expeditious handling of the case but also blasted the Supreme Court for disrespecting both the judge and the president. “Any criticism of this district judge is unwarranted and unfortunate,” Ho wrote as he noted that Hendrix appropriately gave the Trump administration a chance to respond to the ACLU’s motions. “It should go without saying that the President and his fellow Executive Branch officials deserve the same respect that courts regularly afford every other litigant—including other Presidents and officials.”

That, of course, is not happening. One could safely argue the Supreme Court’s involvement in this case and a similar lawsuit in Washington—in addition to politically charged comments by Roberts and others on the high court—are contributing to the Denny’s-style atmosphere in federal courtrooms across the land: Trump-hating judges feasting off a long menu of subpar legal concoctions stacked high with empty-calorie arguments to satisfy their craving to sabotage the president.

In the most recent example of this sort of short-order cook approach to jurisprudence in the Trump era, a federal judge in Boston last week issued a temporary restraining order against the president’s revocation of Harvard’s ability to enroll foreign-born students just hours after Harvard filed a lawsuit. U.S. Judge Allison Burroughs, an Obama appointee, did not allow the Trump administration to respond—precisely what Ho had warned.

Judges with little to no input from the White House have gutted numerous executive orders from prohibiting transgender surgeries for federal inmates and punishing partisan white shoe law firms to reducing the size of the federal workforce; SCOTUS appears in no hurry to intervene as the clock winds down on the president’s first year in office.

So, despite a handful of rulings in favor of the president, the highest court in the land nonetheless continues to shred its credibility either in service to Beltway elitism, political cowardice, or what Roberts recently insisted is his duty to “check the excesses of the Congress or the executive.”

Ho, who reportedly was on Trump’s short list to replace Ruth Bader Ginsburg after her death in 2020 (he unfortunately chose Amy Coney Barrett instead), also took a shot at Roberts for that outrageous remark. “It is not the role of the judiciary to check the excesses of the other branches, any more than it’s our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes.”

Ouch.

In his year-end report, Roberts complained about a lack of respect for the judiciary, whining about the lack of “informed criticism” against federal judges and their decisions.

Maybe if the majority of judges stopped acting like harried waitresses taking orders from their most demanding customers and instead acted like serious people tasked with immense power, Americans would view them differently.

Until then, one will find more satisfaction—and integrity—at the local Denny’s.