For much of the last five years, the fine federal judges of Texas were slandered and maligned. They were called rogue, partisan hacks. Egged on by pundits on social media, these judges were targeted for non-stop attacks. Their chambers were blitzed with calls. They received countless misconduct complaints. Billboards were plastered with their faces. They were subject to repeated death threats, which led to criminal indictments. This conduct was far worse than any pizzas delivered to judges. How did the federal judiciary respond to these actions? By trying to ram down an illegal rule to take away their cases. And the threats were met with silence.
The reality is very different. For sure, plaintiffs forum shopped, but the Biden Administration never argued that venue was improper. And when these judges issued national injunctions or vacaturs, they stayed their rulings to permit the government to take a timely appeal. The Fifth Circuit moved promptly, and decided cases on its emergency docket to permit a timely appeal to the Supreme Court. It is fair to criticize these rulings on their substance, but over the four years of the Biden Administration, I think Texas judges largely followed fair procedures.
The second Trump administration has brought on a different wave of problems. District judges have permitted suits against the federal government for damages that should clearly have been brought in the Court of Federal Claims. Habeas actions brought on the east coast should have clearly been brought in Texas where the prisoners were confined. Actions seeking reinstatement of federal employees should have clearly been brought in the MSPB and other civil service forums. Judges have certified class actions during ex parte TRO hearings without any regard for Rule 23. And so on.
At every instance, judges in these cases abandoned any pretense of process formalism. Even as they denied Trump the presumption of substantive regularity, courts themselves abandoned any preseumption of procedural regularity. Judge Boasberg is perhaps the most egregious repeat offender. On a Saturday afternoon hearing, he told the ACLU lawyers to restyle their habeas case as an APA case to avoid venue problems, and immediately certified a class, and ordered the executive branch to turn around planes. Even after the Supreme Court gave him an easy out by finding he lacked venue, he is still going down the road to appoint a truly independent special prosecutor who can assert absolute authority over the executive branch. Again, Boasberg may be right or wrong about the substance, but procedurally, he is way out of his lane. The D.C. Circuit administratively stayed Boasberg’s order by a 2-1 vote (Katsas and Rao, with Pillard dissenting). Let’s see if that holds up.
By any procedural measure, the judges of Texas have behaved far better than the judges on the Amtrak Corridor. This background brings me to the latest installment of the emergency docket, A.A.R.P. v. Trump.
Judge Hendrix cannot be faulted. He moved with remarkable dispatch on a compressed timeline with a very complex case. The ACLU only gave him forty-two minutes to rule, even as he promisd to rule by the following day. You might say, well someone had to stop the planes? The federal judiciary does not work for the ACLU. There are many important cases on the docket. Indeed, it seems that Judge Hendrix had a criminal case that week. Generally, as any district court law clerk can tell you, criminal cases always take precedents over civil matters. (Whenever lawyers called to ask about the status of a civil case, I would parrot that line.) Judges cannot be expected to rule on incredibly complex cases, without waiting for the other side to reply. That sort of knee-jerk reaction would be the anthesis of reasoned decision-making. Remember, courts cannot solve all of society’s ills. Some problems can only be resolved through the political process.
The Fifth Circuit cannot be faulted. They only had the case for a few hours before the ACLU ran to the Supreme Court. And the panel managed to put together a one-page order denying relief. This analysis, which was done without the benefit of any government briefing, is also emphatically correct.
Petitioners’ opposed motion for a temporary administrative stay and an injunction pending appeal is DENIED as premature. “A court of appeals sits as a court of review, not of first view.” Zaragoza v. Union Pacific Railroad Company, 112 F.4th 313, 322 (5th Cir. 2024) (cleaned up). That principle dictates our ruling today. Just yesterday, the district court entered an order indicating that “[t]he government states that authorities will not remove the petitioners during this litigation, and it will alert the Court if that changes.” If Petitioners are concerned that Respondents’ position has changed, they should have litigated these concerns before the district court in the first instance. We do not doubt the diligence and ability of the respected district judge in this case to act expeditiously when circumstances warrant. Petitioners insist that they tried to proceed before the district court in the first instance, and that the district court simply “refus[ed] to act.” But the district court’s order today indicates that Petitioners gave the court only 42 minutes to act—and did not give Respondents an opportunity to respond. The appeal is DISMISSED for lack of subject matter jurisdiction under 28 U.S.C. § 1291(a)(1), for substantially the reasons stated in Judge Ramirez’s concurrence.
This is far more considered judgment than the Supreme Court gave to the issue.
Moreover, Judge Irma Carrillo Ramirez wrote a two paragraph concurrence under exceptionally tight circumstances:
Nevertheless, “what counts as an effective denial is contextual— different cases require rulings on different timetables.” In re Fort Worth Chamber of Commerce, 100 F.4th 528, 535 (5th Cir. 2024). “District courts have wide discretion in managing their docket, and they do not necessarily deny a motion by failing to rule on a parties’ requested timeline.” Id. Here, the petitioners filed a motion for a temporary restraining order just after midnight on April 18, 2025. Around noon the next day, they filed a motion seeking a status conference and informing the district court that they would construe its failure to act within 42 minutes as a constructive denial of their motion. The ensuing appeal, after the district court failed to meet this unreasonable deadline, divested the district court of jurisdiction. It was therefore unable to complete its review of the filings, after affording the government an opportunity to respond, and issue rulings by noon on April 19, 2025, as it had planned. Although the declarations fully reflect the need for urgency, we cannot find an effective denial of injunctive relief based on the district court’s failure to issue the requested ruling within 42 minutes. The appeal is dismissed for lack of subject-matter jurisdiction under 28 U.S.C. § 1291(a)(1).
Kudos to Judge Ramirez. She previously served as a Magistrate Judge, and has a wealth of experience in the intricacies of trial court proceedings. The Supreme Court, and its two former district court judges, should know better.
Maybe the ACLU would have preferred if the Fifth Circuit summarily denied relief without putting out any opinion. That way the ACLU could take the case to the Supreme Court without delay. Maybe the Supreme Court does not even care what the Fifth Circuit has to say about these matters. If the Justices did, they could have waited a few hours before administratively staying the executive branch’s actions. But process matters. Here, the fine judges of Texas illustrated process formalism. The members of the Supreme Court majority did not. Instead, they ignored the foundational principles of Marbury v. Madison and issued an order in the absence of appellate jurisdiction.
I wonder if the Supreme Court, when it decided J.G.G. v. Trump, thought through the next step. What would happen if the Fifth Circuit did not bend procedural rules like the D.C. Circuit did? The Supreme Court’s ruling on venue punted the inevitable clash with the real process formalists.
My friend Mike Fragoso aptly noted the “excellent application of process formalism by Biden appointee, Irma Ramirez.” He added, “too bad the Supreme Court’ didn’t heed to it.”
Excellent application of process-formalism by Biden appointee, Irma Ramirez. Too bad the Supreme Court didn’t take heed to it. https://t.co/yUClN0eP7P pic.twitter.com/S7hftMcTvz
— Mike Fragoso (@mike_frags) April 19, 2025
I share Mike’s frustration. But some people on the Supreme Court did heed to it: Justices Alito and Thomas. At least one, and probably all three, of the Trump appointees, disregarded process formalism. (We’ll see if anyone else joins Alito’s imminent dissent.) As I’ve written before, for Justice Barrett, process matters except when the case comes from the Fifth Circuit. Here is your daily reminder that President Trump could have filled all three of his vacancies with judges from Texas.
Soon enough, A.A.R.P. will come back to the Court in the normal course. The Justices will never have to acknowledge how flawed this order was. Justice Alito will issue a dissent, as promised. But it will not make a difference. In a stress test, the Justices of the Supreme Court failed. In the same breath that Judges like J. Harvie Wilkinson wax poetic about the executive branch behaving lawlessly, the highest court in the land does no better.
I’ve long said that Chief Justice Roberts thinks about law in terms of newspaper headlines. “Supreme Court upholds Affordable Care Act” matters far more than the nuances of the Tax Anti-Injunction Act or the apportionment requirement of the Direct Taxes Clause. Roberts is proud to disavow being an originalist, but I think the reality is far worse. He is not a legalist. More often not, the law will take a backseat where Roberts thinks that there is some higher purpose the Court must serve in the moment.
The Court’s statement (and it is not an order) in A.A.R.P. v. Trump illustrates this principle clearly. The headlines all report that “Supreme Court blocks removal of aliens by a 7-2 vote.” But the press is utterly unconcerned with whether the Court even had jurisdiction to do so. Indeed, to the extent the reporters said anything, they unquestionably accepted the ACLU’s position that the district court’s failure to immediately rule on a motion warranted immediate intervention by the Supreme Court. How many of these reporters ever spent a day in district court, where preliminary injunction motions sometimes sit pending for weeks or months. The inferior courts performed with exemplary swiftness here.
I’ll close with my common refrain. John Roberts is ill equipped to keep the Court away from an actual constitutional crisis. At this point, he is squirming in a pit of quick sand. The more he flails his arms, the quicker he will sink. Anyone who reaches out to the Chief will descend just the same.
