Has the Chief Justice Finally Seen Enough?

Has the Supreme Court finally gotten fed up with courts setting executive-branch policies? Based on last night’s intervention by Chief Justice Supreme Court John Roberts, the answer could be yes. 

At the very least, Roberts appeared annoyed with the circumstances of the order to restart foreign-aid payments. Federal judge Amir Ali had ordered Donald Trump to comply by midnight last night, but Roberts said not so fast, pal:

Chief Justice John Roberts late Wednesday granted the Trump administration’s request to put on hold a lower court order that required it to pay an estimated $2 billion in foreign assistance funds for State Department and U.S. Agency for International Development projects by midnight Wednesday.

Roberts, who oversees requests for emergency relief arising from cases in the District of Columbia, acted alone in halting the decision from a federal district judge issued Tuesday. The judge, U.S. District Judge Amir Ali, gave the State Department and USAID until 11:59 p.m. Wednesday to pay its bills to contractors for work that had been completed before Feb. 13. The Trump administration had earlier in the night asked the Supreme Court to intervene in the dispute involving frozen foreign assistance funds.

Roberts gave the State Department and USAID contractors until noon Friday to respond to the Trump administration’s request.

What makes this especially interesting is the sequence. The Trump administration had appealed Ali’s decision to the appellate circuit, but they dragged their feet on handling the emergency request. With the deadline only a few hours away, the White House went over the heads of the DC Circuit Court of Appeals. Normally, the Supreme Court would decline to intervene ahead of the appellate court, but Roberts may have smelled a rat in how the emergency request was being handled.

If so, what happened next probably confirmed it for Roberts:

The Trump administration had already appealed the district judge’s order to the U.S. Court of Appeals for the District of Columbia Circuit and asked it to pause the lower court’s decision. But the D.C. Circuit had yet to act by Wednesday evening. Harris said the administration was seeking the Supreme Court’s intervention “in light of that extraordinary circumstance.”

But shortly after the Trump administration formally asked the high court for emergency relief, the appeals court declined the Trump administration’s request to pause the district court’s decision. The three-judge panel on the D.C. Circuit said Ali’s orders could not be appealed.

Says who? What kind of ruling by a federal district court can’t be reviewed on appeal, especially one that intervenes in executive-branch authority in foreign affairs, where presidents are at the zenith of their Article II powers? Clearly Roberts didn’t get the memo that Ali’s orders are above review.

The White House didn’t even object to making the payments, but to the idea of being ordered to pay out $2 billion or so within 30 hours:

“This new order requiring payment of enormous sums in less than 36 hours intrudes deeply into the prerogatives of the Executive Branch and the president’s obligation under Article II to take care that the laws are faithfully executed,” they wrote in a filing to the D.C. Circuit.

Peter Marocco, director of foreign assistance at the State Department, said in a declaration that the administration is undertaking an “individualized review” of contracts and grants, and warned determining the course of those awards is a “cumbersome, multi-step process.”

That is a reasonable objection, and an argument that the appellate court should have considered in an application for a stay. If they found it insufficient, then they should have ruled on it expeditiously with an explanation for their decision. To claim that the executive branch can’t even have a review of a court order involving foreign-policy decisions is absurd. 

Our friend Shipwreckedcrew thinks Roberts wanted to send a message, one that the media is missing:

I love all the press coverage tonight of CJ Roberts’ order from about 10:00 pm ET.

All the usual suspects — AP, Reuters, ABC, etc., all refer to it as a “temporary” hold on the order that the Court entered.

No. The Orders are “Stayed” pending further order of the Court.

If… pic.twitter.com/ydS5QfBaPG

— Shipwreckedcrew (@shipwreckedcrew) February 27, 2025

If the CJ Roberts thought the District Judge was within his authority to order the Executive to spend specific amounts on money on specific grants/contracts on or before midnight tonight, he could have simply done nothing.  

Instead he said the Admin need not comply with the Order.

Ship later extended his thoughts to Ali’s incompetence:

So CJ Roberts steps in around 10:00 and issues a stay on the Order to Enforce His TRO entered by Judge Amir Ali in DC — a District Court judge for all of 90 days.

Judge Ali’s TRO had commanded that the Executive branch lift its “blanket” suspension of payments on grants and…

— Shipwreckedcrew (@shipwreckedcrew) February 27, 2025

While the “merits” of the withholding might be subject to some legitimate legal debate, when a higher court — or the Chief Justice — steps in so abruptly there is very often a key issue that the lower court judge is simply ignoring in his haste to “do right” — and I think that is the problem here. The District Court lacks jurisdiction to entertain the claim or provide the relief requested — whether the plaintiffs are entitled to it or not.  Judge Ali brushed off the questions about jurisdiction in his fit of pique over what he saw as DOJ non-compliance with his Order. But there is a truism that all federal civil litigators know — one that never occurs to legal reporter: “Jurisdiction is always at issue.”

Now the Supreme Court will review the situation, including (presumably) jurisdiction, where the Trump administration will have a better chance of success. The top court still could very well order that the White House process payments for work already accomplished on a more rational schedule, or they might decide that executive authority allows for cancellation under the circumstances. Or, probably, they could enjoin any payment orders and tell the lower court to leave it alone until an actual trial on the merits. 

This snap intervention suggests, though, that Roberts is getting fed up with both the lawfare efforts and federal judges enabling it. Let’s see if that message gets through to the DC Circuit, where the mischief would largely take place over the next few weeks and months.