The Appellate Void: Trump Could Defy Judges Without Confronting the Supreme Court

When a federal district judge blocked the deployment of National Guard troops to Portland on Oct. 4, U.S. Homeland Security Adviser Stephen Miller called the decision a “legal insurrection.” Other influential MAGA personalities demanded President Trump openly defy the courts. Though the administration ultimately appealed and obtained a stay of the decision—later thrown out by the full U.S. Court of Appeals for the Ninth Circuit—this rhetoric represented a sharp escalation from earlier in the year. Outright defiance of court orders seems increasingly plausible.

If and when that moment arrives, it could play out in several ways. The most obvious scenario—and the one that has dominated the popular imagination—is a dramatic showdown between the president and the Supreme Court. But another plausible scenario has been largely overlooked: After an adverse ruling, government defendants might simply ignore the district court’s order and decline to appeal. As the prevailing party, the plaintiffs could not appeal either. The result is what I call an “appellate void”—a jurisdictional gap in which lower federal courts lack effective tools for enforcing their decisions against a recalcitrant executive, and higher courts lack any obvious path to intervene.

This scenario is not purely hypothetical. The Trump administration has already tested variations of this strategy. After multiple district courts preliminarily enjoined the president’s executive orders targeting law firms on First Amendment grounds, the administration initially declined to appeal these decisions even as it filed interlocutory appeals in scores of other cases. During this period, it continued holding the orders over the heads of firms that chose to settle rather than litigate, while apparently complying with preliminary injunctions protecting firms that brought suit. For instance, “Kirkland & Ellis, Latham & Watkins, A&O Shearman, and Simpson Thacher & Bartlett each agreed to provide $125 million in pro bono or free legal work,” according to the White House. The orders thus retained much of their in terrorem effect despite being held unconstitutional by multiple judges. Eventually, the administration filed appeals in these cases.

The Supreme Court’s recent decision in Trump v. CASA, Inc. has created new opportunities for this kind of gamesmanship. By prohibiting universal injunctions in most circumstances, the Court enabled this and future administrations to comply with adverse judgments only as to named plaintiffs while continuing challenged policies against everyone else. When coupled with a refusal to appeal, this “appellate void lite” strategy could deny higher courts any vehicle to establish binding precedent on important constitutional questions, while allowing the government to maintain—truthfully—that it has fully complied with all court orders.

The appellate void strategy is most attractive when a president expects to lose on appeal. If the Supreme Court operates as a virtual rubber stamp for the administration, the expected benefits of appealing remain high and the costs low, making the appellate void strategy unnecessary. Many observers believe the Court is already taking this approach, though others argue that this conclusion is premature given that most decisions have turned on procedural rather than merits questions. But if the Court proves willing to block important presidential initiatives—or if the administration believes it will—then refusing to appeal while defying district courts might seem preferable to risking a high-profile defeat at the Supreme Court. If past is prologue, the administration will eventually push boundaries that even a sympathetic Court will not tolerate, making the appellate void strategy increasingly tempting.

The Jurisdictional Trap

The appellate void emerges from the confluence of several settled jurisdictional rules. The most fundamental is that prevailing parties generally cannot appeal. This principle flows directly from Article III of the Constitution, which limits federal courts to deciding disputes with real, concrete injuries, rather than abstract legal questions or hypothetical scenarios. Without a concrete injury that judicial relief can redress, there is no “case or controversy”—per Article III—for an appellate court to resolve. As the Supreme Court explained in Deposit Guaranty National Bank v. Roper, “a party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.”

This makes intuitive sense. If plaintiffs win everything they sought in district court, why would they need to appeal? The problem arises when government defendants refuse to appeal while simultaneously defying or circumventing the district court’s order. In this case, the proper recourse for plaintiffs is to request that the district judge enforce compliance with the order through fines or other contempt sanctions. It is not to appeal the judgment in their favor. Only an injury caused by the judgment itself—not by the government’s noncompliance—creates a legal right to appeal to a higher court, whose decisions the administration might feel more compelled to respect.

Could the courts of appeals or Supreme Court step in by issuing what is called a writ of mandamus—a court order commanding an official to perform a specific duty? Not easily. When a higher court issues mandamus to a lower court—directing it to transfer a case or exercise jurisdiction, for instance—the writ operates as a form of appellate review within the judicial hierarchy. Simply put, the Supreme Court or court of appeals is correcting a mistake by a lower court.

Mandamus against executive officials works differently. When a court orders, say, the secretary of homeland security to comply with an injunction, that order is not correcting a lower court’s error. It is functionally a whole new lawsuit. In legal terms, this type of mandamus is an “original” action, rather than an appeal. The distinction dates to Marbury v. Madison. Following the presidential election of 1800, William Marbury asked the Supreme Court to order Secretary of State James Madison to deliver Marbury’s commission as justice of the peace. Chief Justice John Marshall rejected the request because Marbury was asking the Court to decide a new dispute rather than to review a lower court’s decision. And this dispute fell outside the narrow categories of original cases the Constitution authorizes the Supreme Court to hear. Courts of appeals have no original jurisdiction at all. So without a pending appeal, these higher courts cannot issue mandamus to executive officials.

Federal law does include something called the All Writs Act, a statute authorizing federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions.” A writ is simply a formal court order. But the Supreme Court has repeatedly emphasized that this act does not create jurisdiction where none exists. It merely protects jurisdiction that courts already have or might soon acquire. When the government deliberately forgoes appeal and no party with standing seeks review, there is typically no appellate jurisdiction to protect and no authority to issue orders under the All Writs Act.

The Fragility of Contempt

This leaves district courts to enforce their own orders through contempt sanctions. In theory, these sanctions might include escalating civil fines or even the arrest of recalcitrant officials. But contempt has always been a fragile remedy against federal defendants.

Civil contempt aims to coerce future compliance and must be “purgeable”—that is, it must be possible for the person or official found in contempt to escape sanctions by complying with the court’s order. But when government defendants claim compliance lies beyond their authority or budget, or would violate presidential policy, courts face a dilemma. If compliance is genuinely impossible without presidential acquiescence, escalating sanctions begin to resemble criminal punishment without proper procedural protections.

Criminal contempt avoids this problem but faces even more serious difficulties. Such proceedings require proof beyond reasonable doubt—the highest standard of proof known to law—and generally entitle defendants to jury trials. Both create additional hurdles. Criminal contempt proceedings also require a prosecutor—typically a government attorney who, at the president’s direction, might well decline to pursue charges. Worse, convictions for criminal contempt are subject to the presidential pardon power, which could nullify any sanctions.

Both civil and criminal contempt enforcement ultimately depend on executive cooperation. By statute, U.S. marshals must “obey, execute, and enforce all orders” of federal courts, including contempt sanctions. But the U.S. Marshals Service reports to the attorney general, its director, and district marshals—all of whom are removable at will by the president. A president determined to defy the courts could threaten marshals with termination and direct the attorney general to choke off the operating capacity of the marshal’s office in question.

A valuable recent analysis by David Noll identifies additional enforcement tools that courts might deploy—including escalating personal fines enforceable through state-law procedures, professional sanctions against government lawyers, and the appointment of non-marshal court deputies under the Federal Rules of Civil Procedure. These tools operate with varying degrees of independence from executive cooperation, and Noll persuasively shows that “courts have more power to prolong conflicts over compliance with their orders” than is commonly assumed.

But this does not alter the bottom line. The best historical scholarship shows that courts have historically lacked the appetite to use the tools they already possess against the federal government. In particular, “courts hardly ever employ personal contempt fines to deal with true institution-level recalcitrance.” Additionally, most of the tools Noll identifies remain untested in modern practice and would themselves trigger formidable resistance from a defiant executive branch. It is impossible to predict with certainty how such a conflict would play out in practice. But the balance of power strongly favors a determined president over a federal district judge.

Strategic Logic

Why might a president simply forgo appeal and risk the costs of defying a court order? Confronting a single district judge is fundamentally different from defying the Supreme Court. Most Americans probably cannot name a single federal district judge. When a president resists a district court order, he can frame the conflict as pushback against overreach by a nameless, faceless judge blocking policies the American people elected him to pursue. He can emphasize the judge’s political affiliation and appointment by a president of the opposite party. What might be a constitutional crisis if the order came from the Supreme Court instead becomes a lopsided confrontation with an obscure and seemingly subordinate official.

This political calculus is reinforced by an enormous disparity in media coverage. There is only one Supreme Court, and its decisions frequently dominate news cycles for days or weeks. By contrast, there are 94 district courts, and their decisions rarely penetrate public consciousness. An administration that quietly drags its feet on compliance—claiming substantial cooperation while exploiting every ambiguity—stands a good chance of keeping the conflict below the threshold of sustained attention.

Beyond minimizing political costs, the appellate void strategy avoids creating adverse nationwide precedent. A single district court decision binds no other court. But a circuit court affirmance establishes binding precedent across multiple states, and a Supreme Court affirmance becomes supreme law of the land. For an administration advancing legally dubious policies, the benefits of avoiding this risk may exceed the uncertain prospects of prevailing on appeal.

The appellate void lite strategy offers most of these benefits at lower cost. By complying with court orders solely as to named plaintiffs while maintaining the challenged policies against everyone else, an administration can truthfully claim to be in compliance with all court orders while achieving most of its unlawful objectives.

Costs and Constraints

The appellate void strategy carries significant downsides. Most immediately, the strategy forfeits the possibility of winning on appeal. Historically, the federal government has won more than 70 percent of its appeals, and the current Supreme Court has proved especially receptive to executive power arguments. Pursuing the appellate void strategy throws away this very good chance of reversal.

The strategy also carries political risks. Even defiance of a district judge will generate media coverage, particularly if sustained. While ordinary Americans may not know the names of most district judges, they understand lawlessness, and find it unsettling. Polls consistently show that large majorities expect the executive branch to comply with court orders, and presidents generally care quite a bit about public opinion, which translates into political capital.

Perhaps most important, sustained defiance risks poisoning the administration’s relationship with the entire federal judiciary. An administration pursuing the appellate void strategy will likely develop a reputation for untrustworthiness, affecting its litigation positions across all cases. Judges who would otherwise be sympathetic may become skeptical. Close cases may start being decided against the government when it would otherwise receive the benefit of the doubt. Requests for stays or expedited relief may be denied.

This matters because every administration relies on courts in countless ways to implement its affirmative agenda—from immigration to environmental law to civil rights enforcement. Federal judges issue search warrants, approve wiretaps for criminal investigations, authorize asset freezes, and process thousands of government requests that transform executive policy directives into legally enforceable actions on the ground. No administration can realistically function without the courts.

The appellate void strategy is most attractive when several conditions align: when the administration’s legal position is weak, when the Supreme Court appears hostile, when policy stakes are high, and when courts seem more likely to be intimidated than fortified by defiance. Conversely, when the likelihood of appellate success is high, when the policy is relatively unimportant, and when the judiciary appears sympathetic or likely to react forcefully to executive defiance, the strategy is less attractive. Why poison relationships with courts that are already giving the president most of what he wants?

Reverse Marbury

The appellate void strategy bears striking resemblance to Chief Justice Marshall’s famous jujitsu maneuver in Marbury v. Madison—but in reverse. In that foundational case, Marshall faced a dilemma: If the Court ordered Madison to deliver Marbury’s justice of the peace commission, President Jefferson would almost certainly ignore the order, exposing the Court’s weakness. But dismissing the case would signal that officials could violate legal rights without any judicial remedy.

As every first-year law student learns, Marshall’s solution was ingenious. He painstakingly explained why Marbury was entitled to his commission, while holding that the Supreme Court lacked jurisdiction to order its delivery because the statute granting that jurisdiction was unconstitutional. This established the power of judicial review of congressional legislation without issuing any order Jefferson could defy.

The appellate void flips this dynamic. Where Marshall leveraged limits on the Supreme Court’s jurisdiction to avoid issuing an order the president would have ignored, a modern president could leverage the same jurisdictional limits to ignore a district court order and shield this defiance from Supreme Court review. If the government refuses to appeal, there is no case for the Supreme Court to decide. And under Marbury’s own logic, the Court cannot issue an order directing the government to comply with a district court order because that would be an exercise of original, rather than appellate, jurisdiction.

Of course, both the Supreme Court and the presidency have changed dramatically since 1803. The Court commands far greater prestige than it did then, despite recent declines in public approval. The executive branch has expanded from a few thousand federal employees to a massive administrative state. Yet the institutional balance remains delicate, and there is no modern precedent for direct defiance of the Supreme Court. This uncertainty is precisely what makes the appellate void appealing for a president determined to escape legal constraints. The result is the same—the president does what he wants—but without risking a high-profile showdown with the Court, which would be forced to watch from the sidelines.

Potential Responses

The appellate void is not inevitable. Courts and litigants have several potential responses, though all have significant limitations and drawbacks.

District courts can structure remedial orders to make defiance more visible through ongoing supervision and detailed reporting requirements, which create potential flashpoints for conflict and media coverage. They can also impose escalating contempt sanctions calibrated to maximize pressure on the government to appeal. More creatively—and controversially—they might strategically deny some requested relief to give plaintiffs something to appeal. But this would be an unorthodox and extralegal basis for decision, raising serious ethical and legal questions.

Appellate courts have limited options. The All Writs Act might permit intervention in narrow circumstances where executive noncompliance threatens to moot potential appeals. Immigration habeas cases where the government seeks to deport petitioners from U.S. territory provide one possible example. Death penalty cases are another. If left unchecked by higher courts, government defiance of an order blocking a petitioner’s deportation or execution would foreclose the possibility of any future appeals. That could be enough to trigger the All Writs Act. But most challenges to government action do not have this characteristic.

More exotic possibilities exist but are extreme long shots. The Supreme Court could grant certiorari before judgment, using its rarely invoked power to review a case before the court of appeals has ruled. Or lower courts could certify specific legal questions directly to the justices for resolution. But by statute, both of these powers extend only to cases already “in” the courts of appeals. If the government defies a district court order while refusing to appeal, the case would never get to that stage. That is the whole point of the appellate void strategy—to keep a case stranded in district court.

Sophisticated plaintiffs might engage in “reverse forum shopping”—deliberately filing some challenges in jurisdictions with judges sympathetic to the administration to increase the odds that at least one plaintiff loses. That defeated plaintiff could then appeal to the court of appeals and, ultimately, the Supreme Court. But this strategy requires significant coordination—advocacy organizations would need to recruit clients in multiple jurisdictions and file simultaneous challenges across the country. The approach also raises ethical concerns about lawyers’ duties to individual clients versus broader strategic goals. More important, reverse forum-shopping remains vulnerable to default judgments—government defeats by forfeit—and settlement offers designed to moot potential appeals. These are just different forms of voluntary surrender. Either would make plaintiffs the prevailing party and block their ability to appeal.

Perhaps most controversially, the Supreme Court might try to preempt the appellate void strategy by ruling for the administration so consistently that appeal always appears more attractive than defiance. The justices might pursue this approach for many reasons—sincere belief in expansive executive power, ideological sympathy, partisan solidarity, or general fear of confrontation. But the appellate void adds one more strategic reason for deference: discouraging the executive from circumventing Supreme Court review entirely by refusing to appeal its district-court defeats.

Like other responses, placating or appeasing the president has serious limitations. It would require sustained coordination across fractious justices on exceedingly difficult questions: How much deference is necessary to keep the president appealing? Which cases matter enough to risk confrontation? And so forth. These calculations require speculation about presidential psychology, political fallout, and the Court’s own popular support—making consensus difficult and mistakes highly probable. There is a strong prudential argument that the justices would do better by not asking these questions. There is also a legal formalist argument that these questions are legally irrelevant and should never enter the judicial calculus.

Looking Ahead

The deliberate saber-rattling of the Trump administration, combined with increasing political polarization and populist disdain for official authority, calls many previously settled norms into question. It is no longer unthinkable that the president might direct his subordinates to defy a district court judgment, rather than appeal it. The recent CASA decision has created new opportunities for plaintiff-specific compliance that allow the president to continue enforcing unlawful policies against all other parties, while keeping the Supreme Court on the sidelines.

These scenarios are speculative, not inevitable. Courts and litigants have many potential responses, which may well carry the day. But the stakes are high enough that we should not let the appellate void take us by surprise. Indeed, understanding the risk in advance may be the key to averting it.

This essay is adapted from a longer article forthcoming in Cornell Law Review, with some assistance from Claude 4.5 Sonnet.