Law.com has Nearly 200 Ex-Judges Tell Supreme Court: Your Unreasoned Emergency Orders Are Not Binding -- More than 175 former federal and state judges signed an amicus brief responding to the Trump administration's argument that lower courts are "flouting" the Supreme Court's unexplained emergency orders.
The notion that lower courts must treat the Supreme Court's orders on its emergency docket as binding precedent is fairly new and not universally accepted. Often, these orders are issued on tight timelines, or as Justice Amy Coney Barrett once put it, “on a short fuse without benefit of full briefing and oral argument.”
Only recently has the Supreme Court indicated that an emergency order "squarely controlled" the outcome of another case. "Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases," the court wrote in July 2025.
The following month, Justice Neil Gorsuch made headlines by suggesting that district courts were defying the court's emergency orders. "Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them," he wrote in a partial concurrence joined by Justice Brett Kavanaugh in August 2025.
On Thursday, the former judges told the Supreme Court that such unexplained orders should not be considered "binding" on other district courts in different cases.
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