The 'Activist Judges' Fight: What the Record Shows About Courts, the President, and the Will of the People

Two Courts, One Word

In the spring of 2025, Senator Marsha Blackburn wrote that "out-of-control, leftist judges" were trying to derail the Trump agenda ^[11]. Around the same time, the Brennan Center for Justice published a piece arguing that a "regressive" Supreme Court had "turned activist" ^[14]. Both used the same word. Both meant a completely different court.

That is the whole puzzle in miniature. The right points at district judges, the low-level federal courts that hear cases first, and says they are freezing a president voters just elected. The left points at the Supreme Court's 6-3 conservative majority and says it is the one overriding elected majorities, not the district judges. Both camps are angry at "the courts." They are not angry at the same courts.

Underneath the name-calling sits a real, measurable set of facts that almost nobody disputes. Nationwide injunctions against presidents really have climbed sharply ^[1][2]. The Supreme Court really did just curb them ^[3]. Trust in judges really has hit a record low, split almost entirely along party lines ^[5][20]. What people disagree about is what those facts mean, and whether either side's villain is the right one.

The Order That Can Freeze a President's Policy Nationwide

To follow the fight, you need to understand one legal tool: the nationwide, or "universal," injunction. It is a court order from a single federal judge that blocks a government policy not just for the people who sued, but for everyone in the country, all at once ^[1][10].

That is unusual. Normally a court ruling settles a dispute between the parties in front of it. A universal injunction skips that limit. One judge, in one district, can pause a president's order for all 330 million Americans while the case plays out ^[11][12].

These orders have been rising for two decades, under presidents of both parties. The Harvard Law Review counts roughly 12 against the Obama administration, 64 against the first Trump administration, and 14 against Biden's first three years ^[1]. The Congressional Research Service and Columbia Law Review find a similar shape, though their exact numbers differ, because each source draws the line around what counts as an "injunction" differently ^[2][10]. About 25 more came in just the first 100 days of Trump's second term ^[2].

There's a clear partisan pattern in who issues them. About 93.6% of nationwide injunctions against Trump and Biden came from judges appointed by a president of the opposing party ^[1]. Every single injunction against early Biden came from a Republican appointee, and many were filed in Texas courts known to be friendly to conservative plaintiffs ^[1]. That clustering points to a related practice called "judge shopping": suing in a district with only one judge, so you know in advance who will hear your case ^[17]. Both sides do it. Concern over the practice led the federal courts' own policy body to adopt new rules against it in March 2024 ^[17].

Then, on June 27, 2025, the Supreme Court ruled 6-3 in Trump v. CASA that federal courts generally can't issue these nationwide orders anymore. Relief should normally go only to the people who actually sued, not the whole country ^[3][23]. The Court did not decide whether the underlying policy, an order on birthright citizenship, was legal. It only decided that judges had been reaching too far in how they blocked it ^[3].

There's a second mechanism worth understanding too: the "shadow docket." That's the Supreme Court's process for emergency requests, ruled on fast, usually with a one-paragraph order and no full opinion explaining the reasoning ^[4][6]. In 2025, the Trump administration filed roughly 26 to 30 such emergency requests, and the Court granted about 83% of the ones it had decided by early October, far more emergency requests than prior administrations combined ^[4]. Critics on the left see this as the Court doing the administration's bidding without showing its work. Defenders note that emergency rulings have always existed and that a high grant rate could just reflect a high volume of urgent, legally weak lower-court rulings getting fixed quickly.

The Case for Reining In the Judges

The strongest version of the right's argument goes like this. Voters elected a president to run the executive branch. A single district judge, who was never elected and answers to nobody, should not be able to freeze that president's policy for the entire country while one lawsuit works its way through the system ^[11][12][13].

Proponents of this view include Senate and House Republicans, the White House, and conservative scholars at the American Enterprise Institute ^[11][12][13]. Their evidence is the injunction numbers themselves: dozens of nationwide orders against Trump in just months, more than were issued against Biden's entire term, and heavily concentrated in a handful of Democratic-appointee courts in California, Maryland, Massachusetts, Washington state, and Washington, D.C. ^[1][12]. To this camp, Trump v. CASA wasn't a loss for accountability. It was a restoration of the courts' proper, narrower role ^[13].

What this reading tends to leave out, according to its critics, is that the same forum-shopping complaint applies just as well to conservative plaintiffs who file in single-judge Texas divisions to get a friendly hearing ^[16][17]. Critics also point out that without some form of broad relief, people challenging a sweeping national policy might have to sue one at a time, case by case, to get the same protection ^[16]. And some of the injunction surge may simply reflect how many executive orders Trump's second term has produced, and how many of them push into legally contested territory, rather than judges acting out of pure ideology ^[7].

The Case Against the Nine

The strongest version of the left's argument flips the target entirely. It's not the district courts you should worry about, this camp says. It's the Supreme Court's conservative supermajority, which has spent recent years discarding decades-old precedent and expanding presidential power, over the objection of Congress and popular majorities ^[14][15].

Proponents include the Brennan Center for Justice and the Center for American Progress ^[14][15]. Their exhibit A is Dobbs v. Jackson in 2022, which overturned Roe v. Wade ^[6]. Exhibit B is Loper Bright in 2024, which threw out the 40-year-old Chevron doctrine that told courts to defer to federal agencies on technical questions ^[6]. Exhibit C is Trump v. United States, decided July 1, 2024, where the Court ruled 6-3 that presidents have absolute immunity from prosecution for their core constitutional acts, and a strong presumption of immunity for other official acts ^[18]. Justice Sotomayor's dissent called the majority's reasoning "utterly indefensible" ^[18]. This camp also points to the Court's high approval rate for Trump's shadow-docket requests as evidence the majority is functioning as an ally of one political side, not a neutral referee ^[4].

What this reading tends to underweight, its critics say, is that the Roberts Court actually overturns very few precedents when you count by raw numbers. It's just that the handful it does overturn happen to be landmark cases people care about a lot ^[6]. Critics also note that overriding a legislative or electoral majority is, in a narrow sense, exactly what judicial review is supposed to do when a law or action is found unconstitutional. And the left's own history complicates the "counter-majoritarian" charge: liberals cheered an expansive, precedent-breaking Supreme Court during the Warren era of the 1950s and 60s, the years of Brown v. Board and Miranda ^[8].

Nobody Can Agree What "Activist" Even Means

Here's the part that should give both sides pause: political scientists have never settled on a single, neutral way to measure "judicial activism" ^[9]. The most common approach counts how often a court strikes down laws, or how often it departs from its own past rulings ^[9][6]. But which court looks more "activist" by that measure depends entirely on which years and which cases you choose to count ^[9][6].

Law professor Steve Vladeck, along with the empirical legal-news site SCOTUSblog and the nonpartisan Congressional Research Service, make a related point: much of what looks alarming right now, injunctions, emergency orders, isn't new behavior invented by one side. It predates Trump, and both parties have used these same tools when it suited them ^[6][10][16]. In their view, the real problem is procedural, how fast rulings come, how little judges explain them, rather than which ideology wins ^[16].

This isn't the first time in American history that "activist" has been the insult of choice, either. The word was first aimed at the conservative Lochner-era Court in the early 1900s for striking down labor laws. Then it was aimed at the liberal Warren Court for Brown v. Board, Miranda, and rulings on how legislative districts get drawn. Then at Roe v. Wade. Then at Bush v. Gore and Citizens United ^[8]. Whichever side loses a big case tends to call the ruling activist. Whichever side wins tends to call it correct.

The institutionalist view has its own blind spot, though, according to its critics. By declining to pick a side, it risks understating things that really do look new in scale: how central the shadow docket has become, and open calls from a sitting president to impeach judges who rule against him, which in March 2025 drew a rare public rebuke from Chief Justice John Roberts himself ^[4][19]. To some observers, treating both sides as equally activist can look like false balance when one side is moving faster or breaking more norms.

What Would Actually Settle This

Several questions here don't have clean answers yet, and they're worth naming plainly rather than glossing over.

The injunction counts themselves are shakier than they look. Scholars can't agree on a single definition of what counts as a "nationwide injunction," which is why estimates for the first Trump term range from 55 to 64 depending on the source ^[1][2][10]. Nobody has yet found a scientific, non-partisan way to measure "activism" that both sides would accept ^[9]. It's also genuinely unclear whether the recent flood of anti-Trump rulings reflects biased judges or simply an unusually large number of aggressive executive orders generating lawsuits ^[7][16].

The biggest open question may be what happens next. Trump v. CASA limited universal injunctions, but plaintiffs can likely route around that limit by filing as a class action or as a coalition of states suing together ^[3][23]. Whether broad court challenges to presidential power actually shrink, or just change shape, isn't something the June 2025 ruling can answer on its own.

There's also a structural backdrop that neither side's villain story fully accounts for. Both recent presidents have leaned heavily on executive orders instead of legislation, and a big share of Trump's second-term orders, roughly a third, have already faced legal challenges, which mechanically produces more injunctions regardless of any judge's politics ^[7][13]. Judicial appointments have also sorted more cleanly by party over time, which is part of why an appointee's party now predicts, with striking reliability, how they'll rule on the opposing party's policies ^[1]. And with Congress often gridlocked, both parties increasingly try to make policy through lawsuits, then attack the courts when a ruling doesn't go their way ^[5]. That cycle, more than any single ruling, may be what is driving the record 58-point partisan gap in whether Americans say they trust the judiciary at all ^[5][20].