US courts push back on Trump policies at record rate

India trails US on judicial independence despite similar systems

A little-known international trade court has put a spanner in United States President Donald Trump’s tariff plans by ruling that they exceeded his legal authority. The US government’s attempt to stop Harvard University from admitting foreign students has been stayed by a Federal District Court in Boston. Meanwhile, the administration’s efforts to end birthright citizenship have been stymied by multiple district courts.

These are not isolated incidents. A study by Bloomberg at the start of May revealed that 143 executive orders and policies issued during Trump’s second term have been challenged in 300 different lawsuits, mostly at the district court level. Of these, courts blocked or stayed executive actions in 128 instances and denied a stay in 43. In May alone, according to data compiled by a political science professor at Stanford, district courts ruled against the federal government in 26 out of 27 cases, a staggering 96% loss rate.

This has prompted a furious reaction from Trump and other federal officials. Their response follows a familiar pattern: how dare unelected judges stop or impede the actions of an elected government? But this is precisely the constitutional purpose of the judiciary. Judges—regardless of whether they were appointed by Democratic or Republican Presidents—seem to have no hesitation in staying or striking down Trump administration policies.

Decisional independence of judges faces more than just the bluster of the Trump administration. The US Supreme Court is currently hearing a case that may significantly limit the power of federal judges to issue nationwide injunctions. Meanwhile, the US Congress is debating a provision that would curtail courts’ power to enforce their orders using contempt powers.

Whatever the eventual outcome of these cases, judicial independence in the United States has, so far, withstood attempts to remove legal constraints on executive power.

This decisional independence of the US judiciary is in stark contrast to the Indian situation, where courts rarely rule against the Union government, when they rule at all. By refusing interim orders and delaying decisions, Indian courts often give the government a free hand to implement its policies, whether or not they are constitutional. By the time courts do act, the status quo has changed on the ground, and they throw up their hands, saying nothing can be done.

The situation is even more dire at the district court level in India. Bail is routinely denied in high-profile cases, and responsibility is passed to the High Courts or the Supreme Court. Recently, Supreme Court judges have expressed concern over this trend, lamenting the lack of independent decision-making by their colleagues in the district judiciary, which ends up burdening the higher courts with routine matters.

So, what allows US courts to exercise decisional independence to a much greater extent than Indian courts when facing executive overreach?

The answer is complex and involves not only the Constitution and legal framework but also other institutions, such as the Bar, which take judicial independence seriously. However, if we were to highlight three constitutional elements crucial to judicial independence in the US, they would be transparency in appointments, security of tenure, and lifetime tenure for judges. India has much to learn from these, should serious judicial reform be pursued.

Regarding judicial appointments, the US process emphasises transparency and public scrutiny to ensure that judges are competent and trustworthy. This helps maintain public faith in the judiciary. In India, unfortunately, a flawed assumption has taken hold: that judicial independence is guaranteed merely because judges recommend judges. This has led to neglect of the appointment process, which remains opaque. Competence and integrity are essential to judicial independence, and when the public is shut out, all three are compromised.

On the issue of service conditions, US federal judges do not face the threat of transfers. In India, while judicial transfers are theoretically made “in the interests of better administration”, they are often used to “punish” judges, most notoriously, during the Emergency, when mass transfers of High Court judges followed judgments against the Union Government. Though there may be legitimate reasons for transfers, the lack of clear norms means judges constantly look over their shoulders when making decisions.

Like their counterparts in India’s High Courts and the Supreme Court, US federal judges are protected from removal by the requirement of an impeachment process. However, most Indian judges, especially those at the district level, do not enjoy this protection. As Prashanth Reddy and Chitrakshi Jain document in their recent book "Tareekh Pe Justice", district judges are vulnerable to arbitrary removal by their jurisdictional High Courts for vaguely defined “misconduct”, particularly in bail matters. Unsurprisingly, many judges err on the side of caution and align themselves with the authorities to safeguard their careers.

US judges, with lifetime tenure, are not tempted by the prospect of post-retirement appointments, unlike many of their Indian counterparts, a point recently highlighted by Chief Justice BR Gavai. His decision to decline any post-retirement role is commendable, but institutions cannot rely solely on personal integrity.

A more transparent appointment process, greater stability in tenure, and a longer—if not lifetime—tenure could help foster the conditions necessary to bolster decisional independence within the Indian judiciary.

(The writer is a co-founder of the Vidhi Centre for Legal Policy and an advocate.)