Bipartisan Group of More Than 180 Former Federal and State Judges Express Concern that the White House is Defining the Court’s Favorable Emergency Orders as Settled Law

A bipartisan coalition of more than 180 former federal and state judges has filed an amicus brief today warning that the government is trying to transform the Supreme Court's emergency orders into settled law, a move that the former jurists say threatens the independence of lower courts and the rule of law.

The judges, who served on trial and appellate courts across the country and under presidents of both parties, urged the court to reject the government's emergency application in Noem v. Dahlia Doe, a case involving Temporary Protected Status for Syrian nationals.

While the case is about immigration, the brief argues that the government's legal argument raises a more fundamental question: whether an unexplained emergency SCOTUS ruling — also known as a shadow docket decision — in one case can be used as precedent to dictate the outcome in a different case with different facts.

The distinction is critical, the judges argue. An emergency ruling is not a merits-based ruling. It’s a temporary pause, often granted without explanation. Yet, the White House wants to treat emergency orders as though they are binding precedent.

The government has argued that lower courts "flouted" two prior Supreme Court orders that stayed lower court decisions in a separate TPS case. The amicus brief outlines why that accusation is false. Those prior orders, the brief explains, were issued on an emergency basis without any reasoning.

"A decision without reasoning cannot possibly carry the same precedential weight for the simple reason that there is no reasoning from this Court to weigh in the consideration of a different case," the brief states. "Unreasoned interim orders from this Court do not make law for lower courts in a different case."

The judges emphasize that lower courts have a constitutional duty to exercise independent judgment. They note that in this case, the Second Circuit acknowledged the prior Supreme Court orders but concluded they were not relevant because they involved a different country, different facts, and different grounds for resolution. The appeals court then applied settled law to the case before it, which is exactly what judges are supposed to do.

The brief also expresses concern about the broader context in which the case arrives at the Supreme Court. The former judges point to recent public attacks on the judiciary by executive branch officials, including the president and Attorney General Pam Bondi, who have smeared judges who don’t agree with them.

The judges warn that such rhetoric, when combined with legal arguments that mischaracterize the work of lower courts, risks undermining public confidence in the judicial system.

The coalition includes judges who served alongside current members of the Supreme Court. A full list of the amici and the courts on which they served is included in the appendix to the brief.

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