Judge spars with Trump's DOJ over Supreme Court shadow docket opinion in key case

A federal judge sparred with lawyers from President Donald Trump's Department of Justice on Tuesday over their reliance on the Supreme Court's shadow docket to argue a case, according to a new report.

The Washington Examiner reported that DOJ lawyer Michael Velchik told a three-judge panel on the U.S. Court of Appeals for the 1st Circuit that a shadow docket decision from last year requires the court to toss a lawsuit against the Trump administration seeking to prevent its policy restricting a passport holder's gender to their biological sex. The 6-3 decision said the policy was stating a "historical fact," according to the report.

“We read that language as making a legal determination that would foreclose their ability to succeed on that on the merits, the Supreme Court has already decided in this case, which is now the law of the case, but is also a precedent that there is no discrimination,” Velchick told the panel, according to the report.

One of the judges sharply questioned Velchick's rationale.

"One of the judges on the panel questioned Velchik’s assertion, noting that it was a ruling on the emergency docket over whether to lift a preliminary injunction, not a ruling on the underlying dispute," according to the report. "The judge questioned how the Supreme Court’s order can be seen as a firm ruling when they are 'making an estimate' on who they think is likely to win when deciding cases on the emergency docket."

"Multiple judges expressed concern that an opinion accompanying an order vacating the lower court’s injunction would be viewed as giving an advisory opinion on the matter, which they are constitutionally barred from doing," the report added.

"The appeals court panel did not indicate how they would rule in the case or when they would issue any order," it continued.