Trump’s presidency faces crucial tests as Supreme Court begins pivotal term

The Supreme Court will launch its new term Monday with a focus on controversial prior rulings and a review of President Donald Trump’s sweeping executive agenda.

After a three-month recess, the nine justices met together for the first time this week to reset their docket, and discuss appeals that have piled up over the summer. The high court will resume oral arguments to confront issues like gender identity, election redistricting, and free speech.

But looming over the federal judiciary is the return of Trump-era legal battles. The administration has been winning most of the emergency appeals at the Supreme Court since January, that dealt only with whether challenged policies could go into effect temporarily, while the issues play out in the lower courts — including immigration, federal spending cuts, workforce reductions and transgender people in the military.

In doing so, the 6-3 conservative majority has reversed about two dozen preliminary nationwide injunctions imposed by lower federal courts, leading to frustration and confusion among many judges.

FEDERAL JUDGES ANONYMOUSLY CRITICIZE SUPREME COURT FOR OVERTURNING DECISIONS WITH EMERGENCY RULINGS

Now those percolating petitions are starting to reach the Supreme Court for final review — and legal analysts say the bench may be poised to grant broad unilateral powers to the president.

The justices fast-tracked the administration’s appeal over tariffs on dozens of countries that were blocked by lower courts. Oral arguments will be held in November.

In December, the justices will decide whether to overturn a 90-year precedent dealing with the president's ability to fire members of some federal regulatory agencies like the Federal Trade Commission. 

And in January, the power of President Trump to remove Lisa Cook from the Federal Reserve's Board of Governors will be tested in a major constitutional showdown. For now, the Biden-appointed Cook will remain on the job.

"A big fraction of the Supreme Court's docket will present the question: ‘can President Trump do?’— then fill in the blank. And that could be imposing tariffs; firing independent board members; removing illegal aliens; sending the military into cities like Los Angeles," said Thomas Dupree, a prominent appellate attorney and constitutional law expert. "So, much of what the Supreme Court is deciding this term is whether the president has acted within or has exceeded his authority." 

The tariffs dispute will be the court's first major constitutional test on the merits over how broadly the conservative majority high court views Trump's muscular view of presidential power, a template for almost certain future appeals of his executive agenda.

In earlier disputes over temporary enforcement of those policies, the court's left-leaning justices warned against the judiciary becoming a rubber stamp, ceding its power in favor of this president.

After a late August high court order granting the government the power to temporarily terminate nearly $800 million in already-approved health research grants, Justice Ketanji Brown Jackson said her conservative colleagues had "ben[t] over backward to accommodate" the Trump administration. "Right when the Judiciary should be hunkering down to do all it can to preserve the law's constraints, the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins."

But some of Jackson's colleagues have denied they are paving the way for Trump's aggressive efforts to redo the federal government.

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"The framers recognized, in a way that I think is brilliant, that preserving liberty requires separating the power," said Justice Brett Kavanaugh earlier this month at a Texas event. "No one person or group of people should have too much power in our system."

And Justice Amy Coney Barrett told Fox News' Bret Baier three weeks ago that she and her colleagues "don't wear red and blue, we all wear black because judges are nonpartisan ... We're all trying to get it right. We're not playing for a team."

Barrett, who is promoting her new book, "Listening to the Law," said her court takes a long-term view, and is not reflexively on Trump's side.

"We're not deciding cases just for today. And we're not deciding cases based on the president, as in the current occupant of the office," Barrett told Fox News. "I think the judiciary needs to stay in its lane ... we're taking each case and we're looking at the question of presidential power as it comes. And the cases that we decide today are going to matter, four presidencies from now, six presidencies from now."

KAVANAUGH CITES 3 PRESIDENTS IN EXPLAINING SUPREME COURT'S BALLOONING EMERGENCY DOCKET

These sharp court fractures between competing ideologies will likely escalate, as the justices begin a more robust look at a president's power, and by dint, their own.

"He who saves his Country does not violate any Law," Trump cryptically posted on social media a month after retaking office.

Federal courts have since been trying to navigate and articulate the limits of the executive branch, while managing their own powers.

Yet several federal judges — appointed by both Democratic and Republican presidents — have expressed concern that the Supreme Court has been regularly overturning rulings by lower courts dealing with challenges to Trump administration policies — mostly with little or no explanation in its decisions.

Those judges — who all requested anonymity to speak candidly — tell Fox News those orders blocking enforcement have left the impression they are not doing their jobs or are biased against the President.

TRUMP ADMINISTRATION TORPEDOES SCOTUS WITH EMERGENCY REQUESTS AND SEES SURPRISING SUCCESS

Those frustrations have spilled into open court.

"They’re leaving the circuit courts, the district courts out in limbo," said federal appeals Judge James Wynn about the high court, during oral arguments this month over the Department of Government Efficiency (DOGE) access to Social Security data.

"We're out here flailing," said Wynn, an Obama bench appointee. "I'm not criticizing the justices. They're using a vehicle that’s there, but they are telling us nothing. They could easily just give us direction, and we would follow it."

The president may be winning short-term victories in a court where he has appointed a third of its members, but that has not stopped him or his associates from criticizing federal judges, even calling for their removal from office when preliminary rulings have gone against the administration.

"This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!" Trump posted on social media, after a March court ruling temporarily halting the deportation of alleged Venezuelan gang members.

The target of the attack was DC-based Chief Judge James Boasberg, appointed to the bench by President Obama.

 Top Trump White House policy advisor Stephen Miller, in interviews, has warned against some unaccountable and "communist crazy judges" "trying to subvert the presidency." 

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According to an analysis by Stanford University's Adam Bonica, federal district judges ruled against the administration 94.3% of the time between May and June. 

But the Supreme Court has in turn reversed those injunctions more than 90% of the time, giving the president temporary authority to move ahead with his sweeping reform agenda.

As for the rhetoric, the high court has walked a delicate path, reluctant to criticize Trump directly, at least for now.

"The fact that some of our public leaders are lawyers advocating or making statements challenging the rule of law tells me that, fundamentally, our law schools are failing," said Justice Sonia Sotomayor at a recent Georgetown University Law Center event, without naming Trump by name. "Once we lose our common norms, we’ve lost the rule of law completely."

Chief Justice John Roberts in March offered a rare public statement criticizing impeachment calls from the right.

But several federal judges who spoke to Fox News also wish Roberts would do more to assert his authority and to temper what one judge called "disturbing" rhetoric.

The U.S. Marshals Service — responsible for court security — reports more than 500 threats against federal judges since last October, more than in previous years. Law enforcement sources say that includes Boasberg, who, along with his family, has received physical threats and intimidating social media posts.

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"I think it is a sign of a culture that has, where political discourse has soured beyond control," said Justice Barrett in recent days.

"The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity," said Justice Jackson in May. "The threats and harassment are attacks on our democracy, on our system of government."

The administration in recent days asked Congress for $58 million more in security for executive branch officials and judges, following the assassination of Charlie Kirk, the conservative activist who led Turning Point USA. 

A Fox News poll from this summer found 47% of voters approve of the job the Supreme Court is doing, a 9-point jump since last year when a record low 38% approved.

"Over the past decade, public confidence in our major institutions has declined," says Republican pollster Daron Shaw, who helps conduct the Fox News survey with Democrat Chris Anderson. "The Court’s rebound could reflect its attempts to steer a middle course on politically polarizing questions or indicate an uptick in positive attitudes toward our more venerable institutions."

Still, by more than 2-to-1, more voters think the court is too conservative (43%) than too liberal in its decisions (18%, a low), while 36% think the court’s rulings are about right. That continues a seven-year trend.

FEDERAL JUDGES ANONYMOUSLY CRITICIZE SUPREME COURT FOR OVERTURNING DECISIONS WITH EMERGENCY RULINGS

The public's views of the court's ability to steer clear of politics will be tested this term.

Besides the two Trump-related appeals, the justices are already scheduled to decide:

But court watchers are pointing to several hot-button pending appeals where "stare decisis" or respect for established landmark court rulings will be tested:  same-sex marriage and communal school prayer.   

The high court is expected to decide in coming weeks whether to put those petitions on its argument calendar, with possible rulings on the merits by June 2026.

But other cases are already awaiting a final ruling: the use of race in redistricting under the Voting Rights Act; and independent government boards.

"I think the likeliest candidates for being revisited are the ones that involve the power of the president to fire the heads of federal agencies," said attorney Dupree. "This is an old precedent that's been on the books really back since the New Deal, and it's come into question in recent years. There's been a long shadow hanging over these decisions, and I think the Supreme Court is poised to revisit those this term and in all likelihood overrule that."

The court may have already set the stage, by using the emergency docket in recent weeks to allow Trump to temporarily fire members of several other independent federal agencies without cause. The court's liberal wing complained that giving the president that power without explanation effectively unravels the 1935 precedent known as "Humphrey's Executor."

KAVANAUGH CITES 3 PRESIDENTS IN EXPLAINING SUPREME COURT'S BALLOONING EMERGENCY DOCKET

"Today’s order favors the president over our precedent," said Justice Elena Kagan in a blistering dissent against Trump's removal of Gwynne Wilcox from the National Labor Relations Board.

The court's "impatience to get on with things — to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever) — must reveal how that eventual decision will go" on the merits, added Kagan.

Sotomayor said recent overturned precedents were "really bad" for certain groups of people.

"And that’s what’s at risk, is in each time we change precedent, we are changing the contours of a right that people thought they had," she said this month. "Once you take that away, think of how much more is at risk later. Not just in this situation."

The conservative justices in recent years have not been shy about revisiting cases that had been settled for decades but now have been overturned: the nationwide right to abortion, affirmative action in education and the discretionary power of federal agencies.

Other pending issues the justices may soon be forced to confront which could upset longstanding precedent include libel lawsuits from public officials, flag burning and Ten Commandments displays in public schools.

One justice who has been more willing than his benchmates to overrule precedents may be its most influential: Justice Clarence Thomas.

"I don’t think that any of these cases that have been decided are the gospel," Thomas said last week at a Catholic University event. If it is "totally stupid, and that’s what they’ve decided, you don’t go along with it just because it's decided" already.

DOJ faces off with entire Maryland federal bench over automatic pauses in deportation cases

A judge appeared skeptical on Wednesday of the Department of Justice's arguments related to an unusual lawsuit the Trump administration brought against all 15 district court judges in Maryland challenging a court order.

Judge Thomas Cullen of the Western District of Virginia questioned the DOJ over the lawsuit, which alleges that the Maryland district court overstepped its authority by imposing a standing order that automatically pauses deportation cases for two days when they are first filed.

Cullen, a Trump appointee, told DOJ attorneys early on in the hearing he was wary of their position.

"One of the things about me is that I don’t have a very good poker face, and you probably picked up on the fact that I have some skepticism," Cullen said.

TRUMP DHS SUES ENTIRE BENCH OF FEDERAL JUDGES IN MARYLAND DISTRICT COURT OVER AUTOMATIC INJUNCTIONS

The Virginia federal judge is presiding over the case in Baltimore because the Maryland judges recused themselves. Cullen said he would issue a decision by Labor Day on whether he would block the standing order.

DOJ attorney Elizabeth Hedges argued during the hearing that the Maryland court's order had the effect of "tampering with the [U.S.] attorney general’s discretion" over immigration enforcement matters.

The order requires clerks to immediately enter administrative injunctions that last two business days in cases brought by alleged illegal immigrants who are challenging their detentions or removals. The injunctions have the effect of temporarily barring the Department of Homeland Security from deporting or changing the legal status of an immigrant until a judge has time to review the case.

Hedges argued that the judges automatically enter the orders in these cases even if the court lacks jurisdiction in some of them.

The lawsuit, brought in June, comes as the Trump administration has taken an aggressive public posture against individual federal judges who have blocked enforcement of many of the president's executive actions, including in areas of immigration, education and federal agency cuts.

President Donald Trump has complained his agenda has been hamstrung and has called for the impeachment of certain judges whose orders he disagrees with. But the Supreme Court has, in many cases, overrode judges and allowed Trump to temporarily implement his executive actions while the lawsuits proceed in the lower courts.

Attorney Paul Clement, arguing on behalf of the Maryland judges, said during the hearing that there were "less confrontational" alternatives to resolving differences with the courts than suing every member of a district court.

Clement, a renowned conservative lawyer who served as former President George Bush's solicitor general, defended the standing order, calling it a "modest effort to preserve the judiciary's ability to perform its constitutionally assigned role."

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Chief Judge George Russell of Maryland said he issued the standing order as a scheduling convenience to make sure the "status quo" is preserved when a deportation case is filed. He cited a "recent influx" of cases involving detained immigrants that were being filed after normal court hours, including on weekends and holidays.

The lawsuit represents a test of the independence of the judiciary branch. Clement said it was "fundamentally incompatible" with the separation of powers.

"We just don’t have a tradition of suits that are executive versus judiciary, executive versus Congress, Congress versus the executive," Clement said, adding that "we don’t really expect one branch to sue another to try to vindicate its institutional interests."

The lawsuit also comes as Trump's mass deportation agenda has encountered some roadblocks as immigrants raise court challenges and appeals to their removals.

Perhaps the most prominent instance of this occurred in Maryland, where Judge Paula Xinis, now one of the 15 defendants in the lawsuit against the judges, ordered the government to return Salvadoran national Kilmar Abrego Garcia to the U.S. after the Trump administration admitted to the court it mistakenly deported him to a prison in El Salvador.

Abrego Garcia has since been returned and is facing criminal charges of transporting illegal immigrants. He has pleaded not guilty.

House Republicans call for investigation into Obama-appointed judge in Trump funding case

FIRST ON FOX: A pair of Republican oversight hawks escalated a complaint on Tuesday about a district court judge who is presiding over one of the Trump administration’s cases, alleging the judge has a financial conflict of interest.

Reps. Jim Jordan, R-Ohio, and Darrell Issa, R-Calif., chairman and member of the House Judiciary Committee, respectively, asked the judicial council for the First Circuit Court of Appeals to investigate Judge John McConnell, according to a letter obtained by Fox News Digital.

McConnell, an Obama appointee, has been presiding over a pivotal funding freeze case in Rhode Island brought by 22 states with Democratic attorneys general. The case centers on the Office of Management and Budget’s order in January that federal agencies implement a multibillion-dollar suspension of federal benefits.

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The states’ lawsuit argued the funding freeze was illegal because Congress had already approved the funds for use. McConnell agreed with the states and blocked the administration from suspending the funds, and the case is now sitting before the First Circuit Court of Appeals.

McConnell wrote in an order in March that the Trump administration’s funding suspension "fundamentally undermines the distinct constitutional roles of each branch of our government." 

The judge said the freeze lacked "rationality" and showed no "thoughtful consideration of practical consequences" because it threatened states’ "ability to provide vital services, including but not limited to public safety, health care, education, childcare, and transportation infrastructure."

Issa and Jordan said McConnell’s long-standing leadership roles with Crossroads Rhode Island, a nonprofit that has received millions of dollars in federal and state grants, raised the possibility of a judicial ethics violation.

"Given Crossroads’s reliance on federal funds, Judge McConnell’s rulings had the effect of restoring funding to Crossroads, directly benefitting the organization and creating a conflict of interest," Jordan and Issa wrote.

Their letter was directed to Judge David Barron, chief judge of the First Circuit and chair of the First Circuit Judicial Council.

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McConnell was quick to become one of Trump’s judicial nemeses when he became involved with the funding freeze case. His initial order blocking the freeze and subsequent orders to enforce his injunction and unfreeze FEMA funds fueled criticism from Trump's allies.

The Trump-aligned group America First Legal has been highlighting McConnell’s ties to Crossroads Rhode Island for months through its own investigation and complaint to the First Circuit.

Rep. Andrew Clyde, R-Ga., filed articles of impeachment against the judge in March, though impeachment as a solution for judges with whom Republicans take issue has not garnered widespread support among the broader Republican conference.

Vocal Trump supporter Laura Loomer targeted the judge’s daughter on social media, and X CEO Elon Musk elevated her grievance on his platform.

One of McConnell’s local newspapers, the Providence Journal, described the judge as a man "well-known" in Democratic political circles and a major donor to Democratic politicians and organizations before he was confirmed to the bench in 2011.

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McConnell included Crossroads Rhode Island and his membership as a board member in his recent public annual financial disclosure reports. No parties in the case have actively sought his recusal at this stage.

An aide for the judge did not respond to a request for comment.

Chief Justice Roberts sounds alarm on dangerous rhetoric aimed at judges from politicians

U.S. Supreme Court Chief Justice John Roberts warned Saturday of the dangers of politicians using heated rhetoric against judges. 

"It becomes wrapped up in the political dispute that a judge who’s doing his or her job is part of the problem," Roberts said in Charlotte, North Carolina, at the Judicial Conference of the Fourth Circuit, a gathering of judges and lawyers. 

"And the danger, of course, is somebody might pick up on that. And we have had, of course, serious threats of violence and murder of judges just simply for doing their work. So, I think the political people on both sides of the aisle need to keep that in mind."

Roberts didn’t name anyone but appeared to be referencing President Donald Trump and Senate Democratic leader Chuck Schumer when he said he'd felt compelled to speak out against rhetoric by Democrats and Republicans in the past. 

CHIEF JUSTICE ROBERTS DOUBLES DOWN ON DEFENSE OF COURTS AS SCOTUS GEARS UP TO HEAR KEY TRUMP CASES

Trump has criticized judges many times over the years, including calling for the impeachment of a judge who ruled against a deportation policy earlier this year, referring to him as "radical left" and a "lunatic." 

Roberts responded at the time, saying, "For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."

In 2020, Roberts condemned Schumer for saying that Trump-appointed Supreme Court justices Brett Kavanaugh and Neil Gorsuch would "pay the price" regarding an abortion rights case during Trump’s first term. 

EX-SUPREME COURT JUSTICE ANTHONY KENNEDY PLEADS FOR CIVIL POLITICAL DISCOURSE, WARNS, ‘DEMOCRACY IS AT RISK’ 

"You have released the whirlwind, and you will pay the price," Schumer said at a rally outside the Supreme Court at the time. "You will not know what hit you if you go forward with these awful decisions."

Schumer later said he was referring to the political price he believed Senate Republicans would pay, but he said, "I shouldn't have used the words I did, but in no way was I making a threat. I never, never would do such a thing, and Leader McConnell knows that." 

Roberts, at the time, said of Schumer, "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter."

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In April, an armed man who was arrested outside of Kavanaugh’s home pleaded guilty to attempting to assassinate the justice. 

Roberts’ remarks came after the Supreme Court issued the final decisions of its term, handing the Trump administration a win Friday by limiting judges’ ability to block his agenda through court orders. 

The Associated Press contributed to this report.

California judge who blocked Trump National Guard order hit with impeachment resolution

FIRST ON FOX: A Republican lawmaker is filing impeachment articles against a judge who temporarily blocked President Donald Trump’s control of the National Guard in California during this month’s riots in Los Angeles.

Rep. Randy Fine, R-La., is filing a resolution to remove U.S. District Judge Charles Breyer from the bench on Friday.

He told Fox News Digital that he felt the judge’s decision was "political."

"The goal is to get judges to do their jobs. If we’re not going to try to hold accountable the ones that aren’t, then they have no incentive to stop," Fine said. 

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It comes as Republicans continue to push back on Democratic officials trying to block Trump’s crackdown on illegal immigration throughout the country. 

The days-long riots in Los Angeles were spurred by ICE raids in Hispanic and Latino neighborhoods, leading to activists clashing with law enforcement and burning cars as a sign of resistance.

Trump, accusing California’s progressive officials of not doing enough to stop the situation, bypassed Democrat Gov. Gavin Newsom to order the National Guard into Los Angeles to restore order.

Critics of the move said it needlessly escalated an already tense situation, and accused Trump and his allies of exaggerating the violence.

Breyer issued a temporary order blocking Trump’s deployment of federal troops earlier this month, however, in response to a lawsuit brought by California.

"At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not," the court opinion said.

"His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith."

Breyer’s ruling was quashed last week when a three-judge panel on the San Francisco-based 9th Circuit Court of Appeals ruled that it was within Trump’s authority to federalize the California National Guard.

Breyer is just the latest judge to be brought under House GOP scrutiny after several Trump executive actions got held up in court.

TRUMP SCORES MAJOR WIN AGAINST NEWSOM IN BATTLE FOR NATIONAL GUARD CONTROL

Trump allies have called for the impeachment of multiple judges, though House GOP leadership has made clear there’s little appetite to follow through on such moves – particularly when removal by the Senate is unlikely.

Fine acknowledged the long odds but insisted the resolution was a potent messaging tool.

"I think it’s worth doing. I don’t know that we can pass it, I don’t know that the Senate would remove him from office, but I think failing to avail ourselves of the remedies that the framers intended was a mistake," Fine said.

Ex-Supreme Court Justice Anthony Kennedy pleads for civil political discourse, warns ‘democracy is at risk’

Former U.S. Supreme Court Justice Anthony Kennedy warned Thursday that the tone of political discourse and threats to judges are undermining the ability of the U.S. to serve as an example of freedom and democracy around the world.

Kennedy, a Reagan appointee who retired in 2018 during President Donald Trump's first term, was speaking during a virtual forum about threats to the rule of law, as he defended the role of judges in a democracy and advocated for the need to protect them and their families from threats.

"Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be," Kennedy said during the "Speak Up for Justice" event, one day before the current Supreme Court justices are set to deliver their final rulings of the current term.

"If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk," he continued.

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Kennedy did not mention Trump, even as other participants expressed concern about the barrage of threats and attacks against judges for blocking key parts of the president's political agenda during his second term, including his immigration policies, firings of federal workers and his implementation of broad-based tariffs.

But Kennedy's remarks appeared to be sparked, at least in part, by the Trump administration's repeated attacks against judges who have ruled against him, including some whom he appointed during his first term.

In March, Trump criticized U.S. District Court Judge James Boasberg as a "radical left lunatic" and called for his impeachment after he attempted to block the administration from removing alleged Venezuelan gang members from the U.S. under the Alien Enemies Act, a wartime presidential power Trump invoked.

Last month, Trump attacked "USA-hating" judges as "monsters who want our country to go to hell."

Trump's rhetoric has come alongside an uptick in threats against judges, according to POLITICO, although spokespeople for the administration have said the president is against any threats and that they would face prosecution from the Justice Department.

Kennedy said "judges must have protection for themselves and their families" and that "judges are best protected when the public and our nation realize how central they are to our discourse." 

"We should be concerned in this country about, as I've already indicated, the tone of our political discourse," he said. "Identity politics are used so that a person is characterized by his or her partisan affiliation. That's not what democracy and civil discourse is about."

Other participants at the forum, which featured judges from the U.S. and other countries who warned about how attacks on courts can threaten democracies, also took aim at Trump's statement denouncing the courts.

Without mentioning Trump by name, U.S. District Judge Esther Salas, whose son was killed by a disgruntled lawyer who went to her New Jersey home in 2020, said disinformation about judges was spreading "from the top down," with jurists attacked as "rogue" and "corrupt."

CHIEF JUSTICE ROBERTS DOUBLES DOWN ON DEFENSE OF COURTS AS SCOTUS GEARS UP TO HEAR KEY TRUMP CASES

"Judges are rogue. Sound familiar? Judges are corrupt. Sound familiar? Judges are monsters. … Judges hate America," Salas said. "We are seeing the spreading of disinformation coming from the top down."

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Salas warned that the number of threats recorded against judges this year was reaching historic heights in the U.S., noting that the U.S. Marshals Service has tracked more than 400 threats against judges since January, when Trump was inaugurated.

"We're going to break records, people, and not in a good way," she said.

Reuters contributed to this report.

Supreme Court to debate Trump restrictions on birthright citizenship and enforcement of nationwide injunctions

The case on the Supreme Court's docket this week ostensibly deals with a challenge to the Trump administration's efforts to narrow the definition of birthright citizenship.

But overriding that important constitutional debate is a more immediate and potentially far-reaching test of judicial power: the ability of individual federal judges to issue universal or nationwide injunctions, preventing temporary enforcement of President Donald Trump's sweeping executive actions.

That will be the focus when the nine justices hear oral arguments Thursday morning about how President Trump's restrictions on who can be called an American citizen can proceed in the lower federal courts.

Trump signed the executive order on his first day back in office that would end automatic citizenship for children of people in the U.S. illegally.

SUPREME COURT POISED TO MAKE MAJOR DECISION THAT COULD SET LIMITS ON THE POWER OF DISTRICT JUDGES

Separate coalitions of about two dozen states, along with immigrant rights groups, and private individuals — including several pregnant women in Maryland — have sued.

Three separate federal judges subsequently issued orders temporarily blocking enforcement across the country while the issues are fully litigated in court. Appeals courts have declined to disturb those rulings.

Now the three consolidated cases come to the high court in an unusual scenario, a rare May oral argument that has been fast-tracked for an expected ruling in coming days or weeks.

The executive order remains on hold nationwide until the justices decide.

But the cases will likely not be decided on the merits at this stage, only on whether to narrow the scope of those injunctions. That would allow the policy to take effect in limited parts of the country or only to those plaintiffs actually suing over the president's authority.

SUPREME COURT TO HEAR ORAL ARGUMENTS IN BIRTHRIGHT CITIZENSHIP CASE

A high court decision could be sweeping, setting a precedent that would affect the more than 310 — and counting — federal lawsuits against White House actions filed since Jan. 20, according to a Fox News data analysis.

Of those, more than 200 judicial orders have halted large parts of the president's agenda from being enacted, almost 40 of them nationwide injunctions. Dozens of other cases have seen no legal action so far on gateway issues like temporary enforcement.

While the Supreme Court has never ruled directly on the use of universal injunctions, several conservative justices have expressed concerns over  power.

Justice Clarence Thomas in 2018 labeled them "legally and historically dubious," adding, "These injunctions are beginning to take a toll on the federal court system – preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch."

And it comes to the Supreme Court as part of the so-called emergency or "shadow" docket, time-sensitive appeals known officially as "applications" that usually arrive in the early stages.

They seek to temporarily block or delay a lower court or government action that, despite its procedurally narrow posture, can have immediate and far-reaching implications.

Things like requests for stays of execution, voting restrictions, COVID vaccine mandates or access to a federally approved abortion medication and, since January, Trump's sweeping executive reform plans.

Some members of the court have expressed concern that these kinds of appeals are arriving with greater frequency in recent years, high-profile issues leading to rushed decisions without the benefit of full briefing or deliberation.

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Justice Elena Kagan last year said the shadow docket's caseload has been "relentless," adding, "We’ve gotten into a pattern where we're doing too many of them."

The pace this term has only increased with the new administration frustrated at dozens of lower court setbacks.

"We've seen a lot of justices critical of the fact that the court is taking an increasing number of cases and deciding them using the shadow docket," said Thomas Dupree, a former top Justice Department lawyer and a top appellate advocate. 

"These justices say, 'Look, we don't have to decide this on an emergency basis. We can wait.'"

Many progressive lawyers complain the Trump administration has been too eager to bypass the normal district and intermediate appellate court process, seeking quick, end-around Supreme Court review on consequential questions of law only when it loses.

The debate over birthright citizenship and injunctions is expected to expose further ideological divides on the court's 6-3 conservative majority.

That is especially true when it comes to the 13 challenges over Trump policies that have reached the justices so far, with six of them awaiting a ruling.

The court's three more liberal justices have pushed back at several preliminary victories for the administration, including its ban on transgender individuals serving in the military and the use of the Alien Enemies Act to deport scores of illegal immigrants suspected of criminal gang activity in the U.S.

TRUMP'S REMARKS COULD COME BACK TO BITE HIM IN ABREGO GARCIA DEPORTATION BATTLE

Dissenting in one such emergency appeal over the deportations to El Salvador, Justice Sonia Sotomayor wrote, "The Government’s conduct in this litigation poses an extraordinary threat to the rule of law." 

"Our job is to stand up for people who can't do it themselves. And our job is to be the champion of lost causes," Sotomayor separately told an American Bar Association audience last week. "But, right now, we can't lose the battles we are facing. And we need trained and passionate and committed lawyers to fight this fight."

Trump has made no secret of his disdain for judges who have ruled against his policies or at least blocked them from being immediately implemented.

He called for the formal removal of one federal judge after an adverse decision over deporting illegal immigrants. That prompted Chief Justice John Roberts to issue a rare public statement, saying, "Impeachment is not an appropriate response to disagreement concerning a judicial decision."

And in separate remarks last week, the chief justice underscored the judiciary's duty to "check the excesses of Congress or the executive."

The first section of the 14th Amendment to the U.S. Constitution states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Trump said last month he was "so happy" the Supreme Court will hear arguments, adding, "I think the case has been so misunderstood."

The president said the 14th Amendment, granting automatic citizenship to people born in the U.S., was ratified right after the Civil War, which he interpreted as "all about slavery."

"If you look at it that way, we would win that case," the president said in Oval Office remarks.

Executive Order 14160, "Protecting the Meaning and Value of American Citizenship," would deny it to those born after Feb. 19 whose parents are illegal immigrants. And it bans federal agencies from issuing or accepting documents recognizing citizenship for those children.

An estimated 4.4 million American-born children under 18 are living with an unauthorized immigrant parent, according to the Pew Research Center. There are approximately 11 million undocumented immigrants living in the country, 3.3% of the population. Although some census experts suggest those numbers may be higher.

But in its legal brief filed with the high court, the Justice Department argues the issue now is really about judges blocking enforcement of the president's policies while the cases weave their way through the courts, a process that could last months or even years. The government initially framed its high court appeal as a "modest request."

CHIEF JUSTICE ROBERTS ADDRESSES DIVISIONS BETWEEN JUSTICES AFTER SEVERAL RECENT SCOTUS SKIRMISHES

"These injunctions exceed the district courts’ authority under Article III [of the Constitution] and gravely encroach on the President’s executive power under Article II," said Solicitor General John Sauer, who will argue the administration's case Thursday. "Until this Court decides whether nationwide injunctions are permissible, a carefully selected subset of district courts will persist in granting them as a matter of course, relying on malleable eye-of-the-beholder criteria."

The plaintiffs counter the government is misguided in what it calls "citizenship stripping" and the use of nationwide injunctions.

"Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay," said Nicholas Brown, the attorney general of Washington state. "If this Court steps in when the applicant [government] is so plainly wrong on the law, there will be no end to stay applications and claims of emergency, undermining the proper role and stature of this Court. This Court should deny the applications."

The consolidated cases are Trump v. CASA (24a884); Trump v. State of Washington (24a885); Trump v. New Jersey (24a886). 

Chief Justice Roberts doubles down on defense of courts as SCOTUS gears up to hear key Trump cases

Supreme Court Chief Justice John Roberts used a public appearance Wednesday to stress the importance of an independent judiciary, doubling down on defense of the courts under fire by President Donald Trump and his allies, who have accused so-called "activist judges" of overstepping their bounds.

Asked during a fireside chat event in Buffalo, New York, about judicial independence, Roberts responded in no uncertain terms that the role of the federal courts is to "decide cases, but in the course of that, check the excesses of Congress or the executive."

That role, he added, "does require a degree of independence."

BOASBERG GRILLS DOJ OVER REMARKS FROM TRUMP AND NOEM, FLOATS MOVING MIGRANTS TO GITMO IN ACTION-PACKED HEARING

Roberts' remarks are not new. But they come as Trump and his allies have railed against federal judges who have paused or halted key parts of the president's agenda. (Some of the rulings they've taken issue with came from judges appointed by Trump in his first term.)

The Supreme Court is slated to hear a number of high-profile cases and emergency appeals filed by the Trump administration in the next few months, cases that are all but certain to keep the high court in the spotlight for the foreseeable future.

Among them are Trump's executive orders banning transgender service members from serving in the U.S. military, restoring fired federal employees to their jobs and a case about whether children whose parents illegally entered the U.S. and were born here should be granted citizenship. Oral arguments for that last case kick off next week.

TRUMP-ALIGNED GROUP SUES CHIEF JUSTICE JOHN ROBERTS IN EFFORT TO RESTRICT POWER OF THE COURTS

Just hours before Roberts spoke to U.S. District Judge Lawrence Vilardo, a high-stakes hearing played out in federal court in Washington, D.C.

There, U.S. District Judge James Boasberg spent more than an hour grilling Justice Department lawyers about their use of the Alien Enemies Act to summarily deport hundreds of migrants to El Salvador earlier this year. 

Boasberg’s March 15 order that temporarily blocked Trump’s use of the law to send migrants to a Salvadoran prison sparked ire from the White House and in Congress, where some Trump allies had previously floated calls for impeachment.

Roberts, who put out a rare public statement at the time rebuking calls to impeach Boasberg or any federal judges, doubled down on that in Wednesday's remarks.

"Impeachment is not how you register disagreement with a decision," Roberts said, adding that he had already spoken about that in his earlier statement.

In the statement, sent by Roberts shortly after Trump floated the idea of impeaching Boasberg, said that "for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision," he said.

"The normal appellate review process exists for that purpose," he said in the statement.