Elizabeth Price Foley and Mark Pinkert are on the right track. They’ve laid out the problem concisely in their Thursday Wall Street Journal op-ed:
Now some lower-court judges have become brazenly defiant, not only of the administration’s agenda but also of high court opinions. In response, the justices have had to remind lower courts of their constitutional role and chastise them for resisting court precedent. But the resistance continues, threatening to erode the judiciary’s ability to function.
And
An anonymous group of 12 lower-court judges took their grievances to NBC News, telling a reporter that the high court’s rulings are “validating the Trump administration’s criticisms” of lower courts. One said “it’s inexcusable” that the justices don’t “have our backs.” Four judges opined that the justices, especially Chief Justice John Roberts, “should do more to defend the courts,” in the reporter’s words. Another judge complained that he and his colleagues have been “thrown under the bus.” But even an Obama appointee admitted that “the whole ‘Trump derangement syndrome’ is a real issue” and that lower-court judges “are sometimes forgetting to stay in their lane.”
They then propose a solution:
They should avoid writing opinions that contain obvious ambiguities like the one in Fair Admissions. They should also clear away the underbrush of nonoriginalist constitutional law, overruling such precedents rather than narrowing, distinguishing or calling them into doubt. … And all the hullabaloo over the president’s authority to fire executive-branch officers would be quieted if the court flatly overruled Humphrey’s Executor v US rather than merely chip away at it.
The court has a duty to provide doctrinal clarity, especially on constitutional law.
Those certainly are good ideas, at least from this textualist’s perspective. Clarity in bold, declarative sentences written in exclusively plain terms, would good, whether textualist or activist. More is needed though.
The Supreme Court needs lay aside its hesitancy and swat down, firmly, recalcitrant judges, especially (but not only) those of the district courts. The Supreme Court, over the course of its admonishment-containing overrulings, need to remove the recalcitrant judge from the case altogether, an action the Court has done, but up to now all too rarely. The Court also needs, rarely but at a non-zero rate, to rule that a particularly insubordinate judge will have all of his rulings automatically stayed until reviewed by appellate courts, including the Supreme Court, if necessary.
These are drastic steps, to be sure, but they’re necessary to emphasize that Supreme Court rulings are binding on the lower courts, especially at the district level; to increase the efficiency and speed of the courts and especially of the appellate process; and to begin to restore the public’s confidence in our court system.