The Federal Court Snapback: The judiciary, including the Supreme Court, is standing up to the president

James Comey’s recent “short report card on the rule of law” said in concise form much of what I had been planning to write about the extraordinary checking function of the federal courts in response to the Trump challenge. In what follows I’ll draw on Comey’s arguments and phrasing and add points he does not address. (All quotations are from Comey unless otherwise indicated.)

Challenges

From the outset of Trump 2.0, federal courts confronted “so much bad behavior by two thirds of our government’s branches.”  The administration “illegally inflicted tremendous pain on a lot of people.” And Congress “has gone missing”—elevating presidential fealty over its own institution and the Constitution, even in areas (like non-enforcement of the TikTok ban and the gutting of the appropriation power) where its prerogatives were being crushed.

The executive branch also displayed unprecedented hostility toward lower federal courts. It “in a whole lot of places and cases, act[ed] unlawfully and in bad faith,” and “lied and weaseled in all kinds of ways to avoid the effect of court decisions.” Congress added to the pressure. Some members threatened to eliminate or restrict federal courts in response to decisions. Speaker Mike Johnson called for impeachment over disliked decisions. All of this unfolded amid growing public threats of violence against judges.

Comey did not discuss the complementary and reactive excess, in substance and rhetoric, from some lower federal courts. I do not think the occasional extreme or performative behavior by lower courts—fixable on appeal—is representative. But it does feed administration narratives of judicial overreach.

In this milieu, the Supreme Court, sitting atop the third branch of the government, faces a dual challenge.

Horizontally, it must vindicate its view of federal law (including the proper scope of executive power) and ensure executive compliance with its decisions even though it has few tools beyond its words to do so. Vertically, it must impose doctrinal coherence on the decentralized lower courts that have divergent views on the legality of various executive branch actions. The Court’s hierarchical control allows it to correct lower-court errors and excesses. When a case arrives on the Court’s docket, it must choose when, how, and how quickly to intervene—with each choice involving many tradeoffs.

Trump’s Many Losses

Comey compared Trump’s early assault on the rule of law to a bungee jump. 

The first phase seemed really powerful. Trump issued all kinds of illegal executive orders. Some big law firms caved, and it looked like Trump might defy court orders on deportations, and so the cord stretched way down into the canyon, scary stuff, but then, as bungee cords do, it snapped back in a big way, as people with an ethical spine and a view of history stood the hell up. And the main contributor to the standing up has been our judicial system.

The canyon was last winter and spring, when many people believed, with reason, that federal courts were being overrun by the Trump administration and widely defied. 

Today, we are somewhere along the snap back. Looking at the last year from the perspective of February 2026, the judicial system definitely stood the hell up. The “culture of the federal judiciary is incredibly strong,” and “[n]o matter who appointed them, federal judges care deeply about their reputation for integrity and independence.” These judges have been “making decisions based on facts and law, and their orders are being followed.”

As a result, the administration “has lost in so many places, in so many ways, that it’s difficult to count,” though the rate of losses is surely “unheard of for the government.”

The Justice Department has been doing abysmally in its vengeful prosecutions. A federal court dismissed the indictments against Comey and Letitia James (both cases are before the Fourth Circuit). Other federal courts rejected attempts to install Trump-compliant U.S. Attorneys in Virginia and New Jersey. Beyond courts, grand juries have refused to indict more frequently than usual and juries have refused to convict in cases of suspected jury nullification.

Turning to civil lawsuits, the New York Times’s Trump administration litigation tracker (as of February 6, 2026) assesses more than 600 civil lawsuits. It concludes that in more than 350 of those, “the courts have let the administration’s policies stay in effect even as they remain in active litigation”; and that in more than 150 cases, “the courts have at least partially halted the administration’s policies either through temporary restraining orders or preliminary injunctions.” It also says that in the 128 cases finally decided, the Trump administration won five, the plaintiffs won 49, two received a mixed outcome, and 72 were “dismissed” (which is explained here).

Consider a few examples.

• The Supreme Court issued an interim order last spring that has ever since shut down the administration’s efforts to deport people without any process pursuant to the Alien Enemies Act.
• There are so many other immigration cases pending in the lower courts, and counting them is hard because they involve so many different issues, and often concern individual treatment rather than programmatic challenges. I will only say that federal courts have frustrated some very important immigration initiatives in addition to the Alien Enemies Act gambit.
• The Supreme Court declined to stay a lower court order enjoining the deployment of the National Guard in Chicago. The legal reasoning in the Court’s order led the administration to withdraw its National Guard deployments in Illinois, Oregon, and California.
• In one paragraph of dicta, a Supreme Court strongly inclined toward the unitary executive called into question the president’s power to fire the chairman of the Federal Reserve. Ever since the administration has backed off its Article II claims over the Fed.  Relatedly, the justices allowed Lisa Cook to remain as a governor at the Federal Reserve pending full review, even though the president fired her “for cause.” At oral argument on the interim order request, the justices appeared disinclined to allow the president to remove her anytime soon.
• The lower federal courts have uniformly enjoined the president’s birthright citizenship order, which is now before the Supreme Court.
• In scores of other cases, lower federal courts have either ruled against the Trump administration or have “halted” the policy through injunctions. Looking at the Times litigation tracker, for example:
  • Of the 10 “access to federal property” cases (largely law firm and media suits), plaintiffs have won four and another two injunctions are in place.
  • Of the 42 “climate and environment” cases, plaintiffs have won four and six injunctions are in place.
  • Of the 27 cases on trans rights, plaintiffs won one and twelve injunctions are in place.
  • Of the 32 DOGE-related cases, plaintiffs won two and nine injunctions are in place.
  • Of the 148 funding cuts cases, plaintiffs won 14, 45 have injunctions in place, and 17 were dismissed for various reasons.

Some people will be surprised at the high Trump loss rate. Others will think it should be higher. But this much is undoubtedly true: The federal judiciary is checking the president forcefully. And it is doing so in the face of massive congressional and presidential hostility.

I say this despite the chaos and defiance of sorts in federal courts in Minnesota at the moment, which has happened in other courts during the last year. The judicial system in discrete cases is reactive and slow. The longer-term and broader picture of the federal judiciary, however, is clearly one of efficacy in holding the Trump administration accountable.

The Supreme Court

Comey addresses criticisms of the Supreme Court’s record along the lines that I and others have done:

The Trump administration only goes to the circuit courts of appeals with a slice of its losses, and then it only asks the Supreme Court to get involved in an even smaller slice, something like a couple dozen out of hundreds of cases. They only ask the Supreme Court to hear cases they think they can win, so not many. All of that adds up to a misleading success rate in the Supreme Court, and even that’s a bit deceptive, because most of the cases the Court has decided so far have been about what’s called injunctive relief, where lower courts acted on an emergency basis to stop something.

Many people look at the government’s 80 percent or so win rate on the interim orders docket and conclude that the Court is in the can for the Trump administration. That view is hard to square with the Court’s important stop signs in the immigration, domestic deployment, and Federal Reserve cases that the Trump administration cares about a lot.

Comey’s additional point is that the solicitor general with rare exceptions will not seek interim relief in cases he thinks it will lose. That means that the Court is exercising a kind of invisible influence on the Trump administration and the rule of law. The government mostly acquiesces in its staggering lower court loss rate—at least in not seeking interim relief, where likelihood of success on the merits looms large—because it knows it will lose in the Supreme Court.   

To understand how well the federal courts have stood up to Trump, one must consider the judiciary as a system. The system is decentralized at the lower court level but hierarchical to the Supreme Court, which is largely responsible for where the law stands in the system at any particular time.

The Court has been harshly criticized for its Trump-related interim orders. The Court should also get credit for the invisible influence it has on the predictive judgment of the solicitor general that results in many, many dozens of lower court injunctions remaining in place against the administration. Richard Re in an essay last month describes other subtle ways that the Court influences the administration to comply with the law beyond its overt checking function. And then there are the handful of merits cases the Court has before it this term, most of which I think the Trump administration will lose.

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In sum: The federal judicial system has done a remarkable job in the face of unprecedented challenges and hostility in standing up to the Trump administration. And the Supreme Court deserves a lot of credit for that.

None of this resolves debate about Supreme Court interim orders: Has the Court’s strong embrace of the unitary executive via interim orders been appropriate? Has the Court consistently applied its interim orders principles? Does it provide enough reasoning in its interim orders? And so on.

These questions provoke sharp disagreement. But that should not detract from the undoubted larger picture of the federal judiciary, including the Court, in the worst of positions, providing a real check on Trump lawlessness. 

“[I]t’s not about whether I like every decision–after all, it’s not the rule of me,” said Comey, responding to criticisms of the Court’s interim orders. “[T]he test for the rule of law can’t be that I get only decisions I agree with.”

True. Also true, if we zoom out: “The System as a whole has stood tall.”

So far. Sometimes a bungee cord breaks.  

Thanks to Tia Sewell for editorial assistance.