Constitutional Law
DOJ nominees hedge on whether court orders must always be followed
D. John Sauer, the nominee to be the U.S. solicitor general, testifies during his Senate Judiciary Committee confirmation hearing Feb. 26. (Photo by Tom Williams/CQ Roll Call via the Associated Press)
Two Department of Justice nominees refused to say whether court orders must always be followed during questioning before the Senate Judiciary Committee on Wednesday.
D. John Sauer, the U.S. solicitor general nominee, said, “Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” Law.com reports.
But Sauer also said “some historians might think we’d be better off” if the 1944 U.S. Supreme Court decision Korematsu v. United States had not been followed. Korematsu upheld an executive order calling for the imprisonment of Japanese Americans during World War II.
In any event, Sauer said, the idea that President Donald Trump would defy a court order is “not a plausible scenario.”
Sauer is a former Missouri solicitor general who clerked for the late Justice Antonin Scalia. He successfully represented Trump before the Supreme Court in the 2020 election-interference case against him. The July 2024 decision held that presidents have “absolute immunity” from criminal prosecution when exercising core constitutional powers.
Other publications with Senate Judiciary Committee coverage include Bloomberg Law, Law360, the Washington Post and Politico.
Aaron Reitz, nominated to lead the DOJ’s Office of Legal Policy, told senators that it would be “too hypothetical” to comment on whether litigants can defy court orders based on a moral disagreement. Reitz is currently the chief of staff for Republican U.S. Sen. Ted Cruz of Texas.
The Washington Post highlighted two other answers given by Reitz.
The first: “There is no hard and fast rule in all instances in which a litigant must comply with all or some or various parts of a judicial decision,” Reitz said. “It is so fact-, law- and case-specific that one cannot speak generally.”
The second: “My position reflects a fairly mainstream view within right-of-center jurisprudential circles, which is simply to suggest that various Supreme Court or Court of Appeals decisions are more limited in scope than maybe our friends who share a different jurisprudential view of Supreme Court holdings would suggest.”
During the hearing, Reitz was asked about his post on X, formerly known as Twitter, after a federal judge blocked a Texas abortion ban enacted during the COVID-19 pandemic.
Reitz wrote that the judge “has made his decision. Now let him enforce it.” The social media post echoed an “apocryphal quote attributed to Andrew Jackson in response to a much earlier court ruling,” according to the Washington Post.
According to Law360, Reitz said the social media post reflects “a conservative view of Article III and the role of courts and their ability to bind parties that are not litigants to the case before it.”
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