The Judges Standing Up to Trump

The Trump Administration has been treating court orders like mere suggestions. Ruth Marcus on the judges who are fighting back.

Thursday, April 17, 2025

Also in this newsletter: • People either love or hate Phish • An M.I.T. professor on how China is likely to respond to U.S. tariffs • Richard Brody reviews Ryan Coogler’s new film, “Sinners” Photograph by Jose Luis Magana / AP Ruth Marcus Marcus writes about politics and the law. We’re past the point of wondering whether the Trump Administration will violate court orders. It will—even as it refuses to acknowledge the obvious defiance. The pressing question is how forcefully judges will respond—and whether the Supreme Court will back them up. Developments this week bode well, at least when it comes to the first part of that challenge. On Tuesday, the U.S. district judge Paula Xinis, of Maryland, hearing the case of Kilmar Armando Abrego Garcia—the Salvadoran man illegally deported to and imprisoned in El Salvador—raised the prospect of contempt proceedings against the government. For good reason: the Trump Administration’s refusal to provide any information about what it is—or, more to the point, isn’t—doing to obtain Abrego Garcia’s release doesn’t just violate Xinis’s previous instructions; it flies in the face of the Supreme Court’s ruling that the Administration must “ ‘facilitate’ Abrego Garcia’s release from custody” and “share what it can” about its efforts to do so. Xinis, upping the ante in the face of the government’s non-answers, told White House attorneys to expect “two weeks of intense discovery.” She set a schedule for Abrego Garcia’s lawyers to seek government documents and to question Administration officials, adding pointedly, “Should Defendants fail or refuse to engage in the above-described discovery in good faith, Plaintiffs are free to seek separate sanctions on an expedited basis.” This judge is not backing down—nor should she. Gratifyingly, she was backed up by the U.S. Court of Appeals for the Fourth Circuit, which issued a swift and stark rebuke of the Administration on Thursday, in turning down its request to block Xinis’s order. The Administration’s position “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, wrote. The U.S. district judge James Boasberg, in the District of Columbia, is several weeks further along in dealing with the Administration’s obstructionism. He is not backing down, either. On Wednesday, Boasberg issued a scorcher of a ruling: forty-six pages detailing the government’s frenzied efforts to ship hundreds of Venezuelan men to El Salvador without due process, and its blatant violation of Boasberg’s efforts to prevent those deportations. The underlying case is out of Boasberg’s hands, as the Supreme Court said it had been brought in the wrong jurisdiction. But the judge insists that the Court’s dismissal isn’t the end of the matter, for a simple reason: “The Constitution does not tolerate willful disobedience of judicial orders—especially by officials of a coordinate branch who have sworn an oath to uphold it.” The government’s actions, Boasberg found, “demonstrate a willful disregard” for his order, enough to “conclude that probable cause exists to find the Government in criminal contempt.” What next? The government could fix the problem by obtaining custody of the Venezuelans and giving them a hearing, Boasberg said, or it could propose some other remedy, which he would consider. Failing that, he would move on to figuring out who exactly to charge with contempt. And, if the Trump Administration declined to prosecute that person (which it will almost certainly do), Boasberg added, he would appoint an outside lawyer to do the job, a move that is mandated under the Federal Rules of Criminal Procedure but not often used. (If deployed, brace for litigation over whether that violates the Constitution’s separation of powers.) Boasberg is playing judicial hardball, but it is well warranted. The Administration has acted as though orders from lower courts can be sneered at. The Supreme Court has effectively encouraged this behavior. In the Abrego Garcia case, the Court’s mixed-message ruling (distinguishing between “facilitating” and “effectuating” Abrego Garcia’s return and noting the “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”) gave the Administration an opening to balk. In the Venezuelan case, as the three dissenting liberal Justices noted, the government’s conduct posed “an extraordinary threat to the rule of law,” and yet the majority “now rewards the Government for its behavior” by stepping in with emergency intervention. The stakes here for the rule of law couldn’t be higher, but the right approach for courts should be familiar to anyone who has raised a toddler. Every parent eventually learns the importance of clear rules and logical consequences. In dealing with this Administration, the Justices should, too. For more: Ruth Marcus speaks with David Remnick on The New Yorker Radio Hour about whether the Supreme Court will yield to Donald Trump. The New Yorker upholds the highest standards of reporting, research, and fact checking. Support our journalism by subscribing » Editor’s Pick Profiles After Forty Years, Phish Isn’t Seeking Resolution People who love Phish do so with a quasi-religious devotion. People who dislike Phish do so with an equal fervor. By Amanda Petrusich More from The New Yorker Q. & A. China’s Plan to Fight Trump’s Trade War A professor at M.I.T. on how Xi Jinping is likely to respond to U.S. tariffs and why the standoff won’t weaken the Chinese Communist Party’s grip on power. By Isaac Chotiner The Current Cinema “Sinners” Is a Virtuosic Fusion of Historical Realism and Horror Ryan Coogler’s vampire movie mines vampirism’s symbolic potential to tell a tale of exploitation and Black music in nineteen-thirties Mississippi. By Richard Brody The Theatre London Theatre Shimmers with Mirrors and Memory New productions of Shakespeare’s “Richard II,” Annie Ernaux’s “The Years,” Robert Icke’s “Manhunt,” Tennessee Williams’s “The Glass Menagerie,” and more. By Helen Shaw Critics at Large: The new movie “Warfare” reconstructs an ill-fated 2006 mission in Iraq from the memories of the Navy SEALs involved. Does this method bring us closer to the reality of combat? 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