The Quiet Rebellion of the Lower Courts

On the pleasures of reading the opinions of judges who stand up to Trump.

Good evening, I hope you’re having a peaceful Sunday. First, ICYMI, here’s a quick recap of two pieces we published last week:

If you value this work, please consider upgrading to a paid subscription if you haven’t done so already. It’s the only way I can keep this publication going. Thank you! —Ryan

---

They’re back.

Tomorrow is the first Monday of October, so if you’re feeling the Sunday scaries, perhaps it’s because the Supreme Court’s new term is starting—and you’re wondering what fresh hell the Roberts court will visit upon the country.

I dread the new term because it promises to extinguish some of the few bright spots in American politics: the opinions of lower court judges who have stood up to Trump.

Our political system is in shambles. Trump continues to seize more power, completely unchecked by 272 Republican poltroons in the House and Senate, and cheered on by a right-wing media that is entering a full-on fascist propaganda phase

I have found that after a typical day of doomscrolling—reading tweets from Stephen Miller attacking protesters as terrorists, watching Kristi Noem stomp around Chicago in videos made by a creepy weirdo cosplaying as Leni Riefenstahl, absorbing the news that Trump will soon be on our currency—there is one thing that acts as a balm. Settling down to read a lengthy judicial opinion that patiently explains why some prominent Trump administration action is illegal has become one of the few things that convinces me that perhaps the worst possible outcomes are not inevitable.

This bubble of optimism pops when I realize that the Supreme Court will likely flick away the sensible conclusions of whatever lower court judge’s constitutional porn has me hooked that night, but it’s still a nice feeling while it lasts.

I think the hit of optimism provided by these long, nuanced, footnoted opinions by federal judges comes from how anachronistic the judiciary is: An entire branch of government that communicates only in multi-page, double-spaced PDFs!

As a reporter, I love the rigorous factual record detailed in a meaty opinion. As a student of the law, I can’t get enough of the painstaking attention to precedent and the deep lessons about the Constitution in nearly every document. As a news addict bombarded with bullshit from every level of the Trump administration, I savor these judges’ aversion to both-siding the issues, and I get a little high on their total contempt for lies and bad faith arguments. As a writer, I am in awe of the power of their words, which on any given day might protect a city from Trump’s federal troops, spare an unlucky American from being flown to a foreign gulag, or protect reporters from another billion-dollar lawsuit filed by the president.

But most of all, it is in these opinions that I find the most consistent affirmation that I am not actually going crazy—that Trump’s assault on the rule of law is not some liberal fever dream. That if federal judges from every part of the country and appointed by Reagan, both Bushes, Clinton, Obama, Biden, and Trump himself, are consistently using their opinions in 2025 to warn Americans that the constitutional order is cracking, then it’s probably not a Soros-funded plot or Trump Derangement Syndrome, and it is probably worth reading what they have to say.

So on this Sunday evening, as we all prepare for the new SCOTUS term, and brace for another week of Trumpian chaos, as we hold our breath to see what city ICE will target next, as we wonder whether snatching naked children from apartment buildings in the middle of the night will now become routine, as we contemplate what other national treasures Trump will desecrate, what other alliances he will break, what members of the media he will try to degrade and humiliate, here are three things I read in the last week by judges that gave me some hope that all is not lost in America.

1. Judge William G. Young, in American Association of University Professors v. Rubio, Liability finding on First Amendment “ideological deportations,” September 30, 2025

After a 9‑day bench trial, the court found by clear and convincing evidence that DHS Secretary Kristi Noem and Secretary of State Marco Rubio coordinated an “ideological deportation” campaign that intentionally chilled pro‑Palestinian speech by non‑citizens—violating the First Amendment.

But that simple summary of Judge Young’s conclusion in the case tells you little about this extraordinary document.

I have now read it several times, and I don’t believe I can do it justice by summarizing it. Every press account I read about this opinion somehow cheapened it in the way that reporters often do when they try to turn something potentially historic into a spot news story on deadline.

There are two things that stand out. One is that Young has written the most exhaustive narrative account of the cruelty, petty political vindictiveness, and bad faith intentions at every level of government that defined the Trump administration’s treatment of Mahmoud Khalil and the other pro-Palestinian activists targeted for deportation. We probably overuse the word Orwellian these days, but it aptly describes how the state singled out these men and women for their beliefs alone, abducted them, publicly smeared them as terrorists, and generally tried to destroy their lives.

But as historically important as all of that is, it is Young’s lengthy contemplation about the state of our democracy in the age of Trump that is so crucial. Again, please read it if you have the time. It will both enrage you and fill you with some hope that there are people like Young, a Reagan appointee, who are checking the executive. Here is how Young ends his opinion:

“Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. (President Ronald Reagan, Inaugural Address as Governor of the State of California, January 5, 1967.)”

I first heard these words of President Reagan’s back in 2007 when my son quoted them in the Law Day celebration speech at the Norfolk Superior Court. I was deeply moved and hold these words before me as I discharge judicial duties. As I’ve read and re-read the record in this case, listened widely, and reflected extensively, I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message—yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.

Is he correct?

2. Judge Waverly D. Crenshaw, Jr., in United States v. Abrego García, finding a “realistic likelihood” of vindictive prosecution, October 3, 2025

If you want to understand what “weaponizing the justice system” looks like, read Judge Crenshaw’s order allowing Kilmar Ábrego García to probe whether DOJ’s smuggling case is retaliation for his legal victories against an unlawful deportation. The court found a “realistic likelihood” of vindictiveness, citing the timeline and public statements by senior officials, and green‑lit discovery plus an evidentiary hearing that could end with dismissal of the case. That is no small thing; judges are trained to be allergic to claims like this unless the smoke is thick.

The story arc is grim and familiar: Ábrego García was deported to El Salvador, fought back in court, won a right to return, and then, upon re‑entry, found himself indicted over an old Tennessee traffic stop that the cops there originally found uneventful. Like the pro-Palestinian protesters, García has been smeared as a dangerous criminal—and much worse—by the highest officials in the government. The judge looks at the record and is aghast, agreeing with García that the Department of Justice used one of the most awesome powers in America—the power to prosecute—as punishment for García daring to use the courts to defend himself. This is pure banana republic shit, and I challenge you to find a single Republican elected official who has raised their voice in outrage about what Pam Bondi, Kristi Noem, and Donald Trump did to this poor man.

3. Judge Karin J. Immergut, in State of Oregon v. Trump, TRO blocking the federalization of Oregon’s National Guard, October 4, 2025

On the first pages of this bracing opinion, Judge Immergut, a Trump appointee, frames the dispute as touching “three of the most fundamental principles” in our constitutional order—federalism, the military’s separation from domestic police work, and the judiciary’s duty to keep the executive within the law. She lays out those key pillars, and then tests the administration’s conduct against them. Trump fails on every count.

Portland’s protests were volatile in mid‑June, yes—but by late September, they were “generally peaceful” and typically “twenty or fewer people.” Days later, after a Trump Truth Social blast about “War ravaged Portland,” Secretary Hegseth nonetheless ordered 200 Oregon Guard members federalized over the Governor’s objection. The court hits the brakes with this TRO, because this isn’t how the relevant law and the Posse Comitatus Act work, and because federalized troops don’t get to play city cop—period.

The opinion’s tone is calm but implacable. Her insistence that the facts on the ground actually matter seems quaint in a world where the president invents emergencies out of whole cloth and stokes a sense of urban crisis by shitposting on social media. She patiently explains why the president cannot make the military a domestic riot squad just because X (or Truth Social) is on fire. Immergut reminds us that whether we follow the Constitution here “goes to the heart of what it means to live under the rule of law.”¹

1. Today, Trump circumvented Judge Immergut’s TRO by sending California National Guardsmen to Oregon. This prompted Gov. Gavin Newsom to join Oregon’s lawsuit and triggered an emergency hearing by Immergut that is getting underway as I hit send.