President Obama was particularly fond of a Martin Luther King Jr. quote about the arc of the moral universe bending towards justice. It has been a pretty good week in that regards, for a change.

The week started on Tuesday with Judge Breyer’s decision in Newsom v. Trump, the case in which the California Governor argued that the President’s use, in L.A. starting in June, of the Marines and the federalized National Guard to execute domestic law was a violation of the Posse Comitatus Act. In Breyer’s ruling, he agrees that the Posse Comitatus Act was violated. He also granted injunctive relief (currently stayed until September 12th), along the following lines:

“Defendants are enjoined from deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops heretofore deployed in California, to execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception, as defined herein, to the Posse Comitatus Act.”

Consistent with the new world order frowning on universal injunctions, Breyer’s injunctive relief is narrowly tailored to California, although Breyer noted in his ruling the President’s threats to send National Guard troops into Oakland and San Francisco, underscoring the need for such relief in parts of the state beyond L.A. Having said that, one imagines his opinion will carry some weight if and when officials in, say, Illinois are faced with federal troops sent in to carry out immigration raids.

Later that same day, the 5th Circuit issued a substantive (as opposed to due process) ruling in an Alien Enemies Act case relating to the Venezuelan gang Tren de Aragua. Many observers had felt that, the 5th being the most conservative of the circuit courts, there was a greater likelihood that the administration might receive a favorable ruling in this district on its interpretation of the 1798 statute. However, in the case once called A.A.R.P. v. Trump but now called W.M.M. v. Trump, by a 2-1 majority the panel ruled that “we find no invasion or predatory incursion,” and thus enjoined the government from relying on the AEA to deport members of a class of affected individuals. Judge Oldham, perhaps auditioning for a SCOTUS appointment under Trump, wrote a 130-page opinion with the unusual ending “I respectfully but emphatically dissent.”

Then yesterday, Judge Burroughs gave Harvard University a thorough legal victory in Harvard v. HHS, contesting the administration’s actions in April and May to strip the university of roughly $2 billion in federal research funding, purportedly due to concerns about Harvard’s actions to combat antisemitism. The summary of paragraph of her ruling reads:

“Defendants and the President are right to combat antisemitism and to use all lawful means to do so. Harvard was wrong to tolerate hateful behavior for as long as it did. The record here, however, does not reflect that fighting antisemitism was Defendants’ true aim in acting against Harvard and, even if it were, combatting antisemitism cannot be accomplished on the back of the First Amendment. We must fight against antisemitism, but we equally need to protect our rights, including our right to free speech, and neither goal should nor needs to be sacrificed on the altar of the other. Harvard is currently, even if belatedly, taking steps it needs to take to combat antisemitism and seems willing to do even more if need be. Now it is the job of the courts to similarly step up, to act to safeguard academic freedom and freedom of speech as required by the Constitution, and to ensure that important research is not improperly subjected to arbitrary and procedurally infirm grant terminations, even if doing so risks the wrath of a government committed to its agenda no matter the cost.”

(“Committed to its agenda no matter the cost” will likely end up being the epitaph for this administration, TACO notwithstanding.)

Perhaps the most interesting part of Burroughs’ opinion is found in a footnote. In order to explain that context of that footnote, however, I need to go back a couple of weeks and mention an August SCOTUS shadow docket decision that I hadn’t previously mentioned, NIH v. AHPA.

That case arose out of the administration’s termination of a large number of NIH grants to researchers, for which the 1st Circuit had provided injunctive relief. Consistent with most of its other recent shadow docket actions, SCOTUS has now lifted the lower court stay, allowing the grant terminations to take effect while litigation on their legality continues, while at the same time creating an odd two-track process for that ongoing litigation. In NIH v. AHPA the Court splintered more than it usually does, in an unusual 4-1-4 configuration: Roberts and the 3 liberals would have kept the stay in place; the 3 arch-conservatives and Kavanaugh would have lifted it entirely; and as such Barrett’s opinion, joined by nobody else, ends up controlling the situation.

But Gorsuch wrote a scathing concurrence, the first sentence of which reads: “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” In Gorsuch’s mind, the outcome of this case was pre-ordained by a 5-4 shadow docket decision from early April, in Dept. of Education v. California, and hence the lower court’s ruling was contrary to established SCOTUS precedent. (Never mind that in Roberts’ dissent, joined by the 3 liberals, he believes that this case is in fact distinguishable from the earlier case.)

With that as background, here is Burroughs’ heroic footnote:

“[T]he Supreme Court’s recent emergency docket rulings have not been a model of clarity, and have left many issues unresolved. … This Court understands, of course, that the Supreme Court, like the district courts, are trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving. … Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for “defy[ing]” the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

Of course, there will be appeals in all these cases, so perhaps the arc will swing back over time even if, for the moment, justice is served.

And speaking of appeals, the administration has filed its petition for certiorari in what is now styled Trump v. V.O.S. Selections, the IEEPA tariffs case decided last week by the Federal Circuit. Alongside the petition, the government filed a motion — with respondents’ acquiescence — requesting “expedited consideration of the merits to the maximum extent feasible” and proposing that oral argument take place in the first week of November, which is lightning fast by SCOTUS standards. Assuming SCOTUS agrees, that should vault this case to the top of the list of noteworthy SCOTUS cases for the October 2026 term.

Finally, in political news Senator Ernst (R-IA) has announced that she will not seek re-election in 2026. It is a sad commentary on our politics when the Iowa Senator born in 1970 is seeking to retire from public life while the Iowa Senator born in 1933 chose to run for an 8th term in 2022 and hasn’t ruled out running again in 2028. This could put another Senate seat in play next year, with Democratic hopes in Iowa bolstered by a recent State Senate by-election in which the Democrats won a seat 55-45 in a district that went 55-44 for Trump last November.