On May 21, an immigration judge named Holly D’Andrea participated in an uncommonly candid public conversation about the nation’s immigration courts—and, more specifically, how they are buckling under the weight of President Donald Trump’s mass deportation agenda. Immigration courts are forums housed within the Department of Justice that hold hearings when the government wants to remove someone from the United States. And as the Trump administration continues to purge nonwhite people from the country, it is simultaneously purging immigration courts of any immigration judges it thinks could hinder that effort.
“We’ve lost over 200 judges in the last year,” said D’Andrea, who serves as president of the National Association of Immigration Judges, or NAIJ. D’Andrea stated that the Trump administration has put “additional pressure” on immigration judges to “follow policy” rather than follow the law, and that “hiring standards have been lowered” as the White House replenishes the ranks with new immigration judges who share its hostility towards the rights of migrants.
Soon, D’Andrea may not be able to make comments like these. Over the past decade, the DOJ division that oversees immigration courts has increasingly restricted immigration judges’ ability to speak publicly about their work. Under the current policy, imposed in October 2021 under the Biden administration, immigration judges may not discuss any “subject matter that directly relates to their official duties” unless they receive “prior approval” from their supervisor.
Shortly after the new rule took effect, the NAIJ filed a lawsuit arguing that the gag rule is unconstitutional. But on Tuesday, the Supreme Court turned away the case in a brief, unsigned opinion. As a result, going forward, immigration judges like D’Andrea—immigration judges who have concerns about what they are seeing at work, and want to tell people about them—might be left with no recourse.
The First Amendment prohibits the government from “abridging the freedom of speech,” and the Supreme Court has long held that a fundamental purpose of that provision is to prevent “prior restraints”—rules the government uses to suppress speech that hasn’t happened yet. And although the First Amendment analysis gets a little more complicated for government employees, generally, they are allowed to speak out about matters of “public concern” in their personal capacities, as long as doing so does not interfere with their agency’s work.
But the issue before the Supreme Court in this case, Margolin v. National Association of Immigration Judges, is not a First Amendment question. Instead, it is about whether federal courts have jurisdiction to hear the case at all. A federal statute known as the Civil Service Reform Act generally keeps federal employees’ grievances out of court, steering them instead to the Merit Systems Protection Board, an independent agency that handles federal personnel matters. And in September 2023, a federal district court in Virginia dismissed NAIJ’s case without reaching the First Amendment questions, leaving it to the MSPB to resolve.
In June 2025, however, the Fourth Circuit Court of Appeals reversed, effectively finding that although federal law would normally require the NAIJ to go through the MSPB, these are not normal times: Since taking office, Trump has claimed to have broad powers over the MSPB, including the authority to fire MSPB judges, to dictate how the MSPB should interpret the law, and even to determine how the MSPB should apply the law in particular cases. And as the NAIJ wrote in its brief, although the three-member board recently regained the two-person quorum necessary to do business, it has zero members who are Democrats.
In light of these serious questions about the MSPB’s “functionality and independence” raised by the Trump administration’s conduct, the Fourth Circuit sent the case back to the district court to assess whether the legal status quo is sufficient to fairly decide claims like the NAIJ’s. “We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the CSRA’s adjudicatory scheme,” the panel wrote.
In its opinion on Tuesday, though, the Supreme Court vacated that judgment on the grounds that the Fourth Circuit violated the “party-presentation principle,” which counsels courts to only answer the questions they were asked. Here, the Supreme Court said, the parties had asked a “narrow question”—namely, whether NAIJ’s claims were covered by the Civil Service Reform Act. Yet, the Court continued, the Fourth Circuit took it upon itself to address a “much broader” question, and then remanded the case to the district court for further proceedings on that question “without giving either side a chance to address its theory.”
In a concurring opinion joined by Justice Amy Coney Barrett, Justice Clarence Thomas made clear that he would have gone further, chastising the Fourth Circuit for its “belief that new political considerations changed the governing law.” He described the opinion below as bearing “little resemblance to legal interpretation,” and reminded the Fourth Circuit that “law remains law despite the political controversies of the day.”
As the conservative justices so often do, Thomas is focusing on procedure here in order to ignore the practical considerations that the Fourth Circuit sought to address: whether these immigration judges can actually get a fair shake before the body that is supposed to adjudicate their claims, when the president has spent the last year and change ensuring that they cannot. By talking about how the “law remains law” while simultaneously signing off on a decision that frustrates the law’s intent, Thomas is allowing the law to collapse on itself.
The real-world impact of the Supreme Court’s decision is that, depending on what the Fourth Circuit does on remand, the NAIJ may have to take its chances in what its lawyer describes as “cumbersome and potentially futile administrative proceedings” at a Trump-dominated MSPB. In a statement, D’Andrea predicted dangerous long-term consequences: “Justice cannot endure when judges are intimidated into silence, nor can a nation remain free when the rule of law is subordinate to the whims of political ambition,” she said.
