Amid tension, Kavanaugh tells judges to ‘keep doing what you’re doing’

By John Fritze, CNN

Memphis (CNN) — Justice Brett Kavanaugh appeared eager Thursday to squelch growing tension within the federal judiciary, praising a meeting of judges for their work on the “front lines of American justice” and defending the high court’s opaque emergency decisions as a product of compromise.

“Keep doing what you’re doing,” Kavanaugh told a meeting of the 6th US Circuit Court of Appeals, adding it was important for appellate judges – including the justices of the Supreme Court – to “recognize the difficulty” trial judges have in making fast decisions in high-profile cases.

“It’s kind of like having the referee on the field and then we’re sitting up in the replay booth dissecting every frame of the replay,” Kavanaugh said.

Though Kavanaugh has made similar points before, his decision to repeatedly praise lower court judges sitting in front of him in Memphis over the course of an hour appeared designed to deescalate at a time when strains between the Supreme Court and trial courts have slipped into view – particularly as the judiciary wrestles with President Donald Trump’s flurry of executive actions.

Days before Kavanaugh took the stage in Memphis, a judge in Boston apologized in response to a rebuke from two justices – Neil Gorsuch and Kavanaugh himself – who wrote that lower court judges were never free to “defy” emergency orders from the Supreme Court. Earlier Thursday, NBC News interviewed several judges who expressed frustration with the Supreme Court repeatedly overturning their rulings in emergency cases with little explanation.

Kavanaugh, who Trump named to the high court during his first term, addressed none of those pressure points explicitly. But the former appeals court judge said he could sympathize with lower court judges who are at times forced to squint at opaque language from the Supreme Court.

Sometimes, Kavanaugh said, that’s “the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult.”

Flanked by two circuit court judges, Kavanaugh added that he was “fully aware that could lead to a lack of clarity in the law and could lead to some confusion at times.”

As it has juggled a flood of emergency cases involving Trump’s second term, the Supreme Court this year has repeatedly handed down terse orders siding with the administration. Late last month, the court allowed the Trump administration to halt nearly $800 million in research grants with a two-paragraph order that was mostly boilerplate. Weeks earlier, the court offered little explanation for its decision to let Trump remove members of the Consumer Product Safety Commission.

The Supreme Court is often reticent to write lengthy opinions in those cases, in part because the justices don’t want to prejudge the final outcome of the case. Also because those cases are usually handled on such a short fuse – generally with a matter of weeks and sometimes days – the court often doesn’t have the time to go through its usual laborious process of circulating draft opinions.

But the lack of clarity, at times, has also forced the court to return to the same issue weeks later. In May, the justices ruled that Trump didn’t have to rehire senior labor officials at independent agencies, despite a 1935 precedent that allows Congress to separate those agencies from presidential intervention. Then in July, the court was asked to resolve a substantially similar case involving members of the Consumer Product Safety Commission Trump had fired.

In that decision, the court said that the first ruling should have controlled the second outcome. While Supreme Court decisions create precedent, it’s not always been clear that emergency orders – which are decided without oral argument and less robust briefing – control similar cases.

“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Gorsuch admonished in an opinion last month tied to another case involving a Trump decision to cut research grants.

“This is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” Gorsuch wrote. “When this court issues a decision, it constitutes a precedent that commands respect in lower courts.”

The rebuke prompted a highly unusual apology this week from US District Judge William Young in Boston, nominated to the bench by President Ronald Reagan, who said he didn’t intend to disregard the Supreme Court with his decision.

Kavanaugh’s remarks Thursday appeared similarly designed at avoiding conflict.

“We all have to support each other, frankly,” Kavanaugh said. “We could all improve ourselves a bit on that, but I think that’s important for the institution of the judiciary.”

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