When Judges Go Rogue

The American Academy of Pediatrics v. Robert F. Kennedy, Jr... An abomination of judicial restraint.

Though I am an attorney in practice for almost thirty years now, I have always said that not all issues can be resolved in a court of law. I say this not because I lack confidence in our judicial system, but because not all issues are subject to the decision of a court. In other words, judges can’t have a say in everything! This is the premise behind our stalwart foundational doctrine of Separation-of-Powers where each of our three, co-equal branches of government have their own sphere of influence and power, and each is to stay out of the others’ lanes. To the point, some issues are policy issues, not legal issues. And so, just as the Executive Branch (the president and his cabinet) cannot adjudicate a dispute between you and your neighbor, nor can a judge nullify an agency’s lawfully permissible actions just because the judge doesn’t like what the agency head has done.

Furthermore, there is a hierarchy to our judicial system in the United States, and in the federal court arena, the “District Courts” are the lowest on the totem pole. Everyone in the legal world knows this. Attorneys, court personnel, legal scholars, and unquestionably, above all others, the judges know this. However, there is a new phenomenon growing in our country which can be categorized as nothing short of lawlessness. There is a class of judges who feel so emboldened, they believe they have the authority to bestow upon themselves a supernatural power to trump the Constitution and “go it their own way,” so to speak. These rogue judges are a clear and present danger to our society, for they ignore our 250-year-old rules, and instead write their own playbook. To borrow a term from the Left (which is rather ironic considering these cagey judges were almost all appointed by Democrat presidents), these judges are “a threat to democracy!”

In response to this growing brazen disregard for law and order, our highest court in the land decided it had to step in and set the record straight. Like naughty children who refuse to obey their parents, the United States Supreme Court (SCOTUS) gave the rogue judges a stern reprimand that left no room for interpretation.

To be exact, in June of last year, SCOTUS issued a decision that made it crystal clear that federal District Court judges (i.e. the lowest level court in the federal judiciary system) are limited in their reach. More specifically, in Trump v. Casa, SCOTUS ruled that these district court level judges can only issue injunctions that are binding on the specific parties in that case. I analyzed this decision in more detail in an NTD interview shortly after the decision was released last summer. The bottom line is, these low courts (of which there are almost 100 in our country), cannot issue decisions that affect the entire country. That power lies only with SCOTUS. As it should. Remember folks, our Constitution only establishes the Supreme Court. All other courts are subservient thereto, and therefore must be obsequiously submissive by their very definition.

And yet, I got a phone call on March 16th from a colleague (though not a fellow attorney), who was clearly agitated, and I could probably say close to irate by the end of the call. He barely greeted me when I picked up the phone, and he dove right in with, “Did you hear about this stupid *ss judge in Massachusetts who just threw out Kennedy’s ACIP panel and invalidated their changes to the childhood vaccine schedule?! What the hell is going on?! He can’t do that! Can he?!” I hadn’t yet heard about the decision, so I immediately thought to myself, this colleague’s got it wrong… There’s absolutely no way a judge in Massachusetts can toss out the HHS Secretary’s appointees to ACIP and undo the work they’ve done. As my colleague was huffing and puffing about it, I remained very calm, which confused him. “Why aren’t you upset about this?” he asked me. So I told him with great confidence that I was sure he got the story wrong, but even if he got the story right, no judge sitting in Massachusetts has the power to do that, so if the judge was absurd enough to issue such a ruling, it’s illegal and will be overturned.

Of course once we hung up the phone, I searched online and read a couple of news stories to see what was being reported on it.

Here is what The Hill news outlet wrote:

A federal judge on Monday blocked Health and Human Services (HHS) Secretary Robert F. Kennedy Jr.’s changes to vaccine policy, including the reduction of the recommended childhood immunizations and his remaking of a key vaccine advisory panel.

U.S. District Judge Brian E. Murphy, a Biden appointee, granted a motion by the American Academy of Pediatrics for a preliminary injunction against the reduced childhood immunization schedule earlier this year, along with the remaking of the Advisory Committee on Immunization Practices (ACIP) for the Centers for Disease Control and Prevention, invalidating all votes made by the committee since.

The article noted Murphy’s rational, pointing out that he:

… found that the CDC bypassing the ACIP when changing the childhood immunization schedule was both a “technical, procedural failure” and “an abandonment of the technical knowledge and expertise embodied by that committee.”

In an even more stunning move, Murphy then personally analyzed the members of ACIP, one by one, naming them by name and decrying how unqualified they were! Read that again, folks. The judge critiqued each member of a panel that the HHS Secretary is permitted to appoint, and the judge decided that each person was not qualified to sit on said panel. Murphy put his God hat on and decided that although the ACIP appointees were indeed experts, some members of ACIP, “appear to lack any expertise or professional qualifications related to vaccines or immunization as required by ACIP’s Charter.” Of other ACIP appointees, Murphy declared, “though they have some experience arguably relevant to ACIP’s function, appear to lack the qualifications and experience to constitute expertise in vaccines and immunization.”

It’s honestly mind-blowing.

This judge literally substituted his opinion (of the medical experts that now sit on ACIP and their professional decisions regarding which vaccines were necessary, at what dosages, and at what ages), for the opinion of the duly appointed HHS Secretary! That is not the role of a court! Judges are not supposed to legislate from the bench, as legislating is a power bestowed upon Congress (Legislative Branch). Nor are judges allowed to govern from the bench, as that is a power bestowed upon the Executive Branch (president and cabinet).

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When I read Murphy’s decision itself, I read it with a great mixture of awe (not in a positive way) and disgust. The bottom line is that this judge is quite frankly, ignorant. On many fronts. He’s ignorant for not knowing that Separation-of-Powers makes this topic non-justiciable. And he’s ignorant for ruling as he did (of course presuming a court actually has the power to adjudicate this issue).

Here’s what struck me most as I analyzed the 45-page decision:

First, I recognized this clown’s name. There cannot be two federal district court judges from Massachusetts named Brian E. Murphy, so I looked him up to confirm... This was the same guy who defied a SCOTUS order that in essence stopped Murphy from staying deportation orders last year! Even radically liberal Justice Kagan scorned this dumbo Murphy for his brazen disregard for SCOTUS’ power. So we are dealing with a guy who already thinks he’s above our nation’s highest court. Wow.

Second, Murphy’s “Procedural Background” section of his decision (the part where the judge lays out the lawsuit’s history up until that point) noted that there were four amended Complaints in this lawsuit, and he allowed all of them. Understand that it’s not that uncommon for a plaintiff to amend their Complaint (that’s the technical name for the document that commences a lawsuit). However, you will usually see one, maybe two amendments once a case is filed. But four?! Definitely not normal, and especially when each of the amendments to the lawsuit substantially change the nature of what is being challenged in the case (as happened here). According to Murphy’s written decision, the final Complaint (after 5 tries) challenges:

Plaintiffs now challenge: (1) Secretary Kennedy’s May 2025 order that the CDC remove its recommendation that pregnant women and “healthy” children receive the COVID vaccine; (2) the reconstitution of ACIP; (3) three votes ACIP took in 2025; and (4) Director O’Neill’s January 2026 memorandum revising the CDC’s childhood immunization schedule (collectively, the “Challenged Actions”).

Alarm bells should be going off in your heads right now because judges can’t adjudicate these things. It just doesn’t work like that. The HHS Secretary did something wholly within his power, and was furthermore carrying out a directive given to him by the President… to study our country’s childhood vaccine schedule and compare it to other, similar nations’ schedules, and if we are out of step (which we are), then fix it.

A notable sidebar:

Last December, Secretary Kennedy reported, “President Trump directed us to examine how other developed nations protect their children and to take action if they are doing better. After an exhaustive review of the evidence, we are aligning the U.S. childhood vaccine schedule with international consensus while strengthening transparency and informed consent. This decision protects children, respects families, and rebuilds trust in public health.”

According to the HHS, the assessment reviewed 20 peer, developed nations and found that the U.S. is a global outlier among developed nations in both the number of diseases addressed in its routine childhood vaccination schedule and the total number of recommended doses but does not have higher vaccination rates than such countries. In fact, many peer nations that recommend fewer routine vaccines achieve strong child health outcomes and maintain high vaccination rates through public trust and education rather than mandates.

For example, in 2024, the U.S. recommended more childhood vaccines than any peer nation, and more than twice as many doses as some European nations. At the lower end is Denmark, which immunizes children against 10 diseases compared to a total number of 18 diseases for which protection was provided in 2024 in the U.S.

Some American children are required to get over 70 shots in order to be allowed to attend school, and yet Secretary Kennedy cites our children as no healthier than peer nations’ youth, and for sure the sickest generation yet.

Third, there is no way the American Academy of Pediatrics (“the Academy”) has standing to bring this lawsuit, and yet, Murphy ruled (twice) that it does. The Academy has zero legitimate injury that it would sustain as a direct result of Kennedy’s actions. Remember the premise behind standing… if you do not have a direct injury from a defendant’s actions, you do not have the right to sue them. For example, if you steal my car, then I can sue you for the loss… but if you steal my mother’s car, then I do not have the right to sue you for the loss (but my mother would). Furthermore, an injury must be legitimate. For example, if Criminal A is selling stolen goods, and Criminal B comes along and steals Criminal A’s stolen goods and starts selling them on his own, then Criminal A doesn’t have the right to sue Criminal B to get his stolen goods back.

Looking at the case at bar, ACIP members being replaced, or certain vaccines being removed or modified from the childhood schedule does not directly harm the Academy, other than perhaps loss of seemingly unethical, corporate cronyism… but I emphasize “legitimate injury”. You can check out the Academy’s list of top corporate donors here. Funny how they’re all basically drug manufacturers. What does that say about the Academy whose mission (as posted on its website) is to promote the health of children by supporting the needs of its members?

Moreover, what does it say about the judge who twisted himself into a pretzel to rule (twice) that standing is proper? (See pages 25-26 of his decision if you want to read his nonsensical explanation).

For those of you who follow my work, you will recall that my epic “Quarantine Camp” lawsuit victory against the tyrannical Governor of New York and her lawless Department of Health was disgracefully (and illegally) overturned on the appellate court’s shameful standing ruling. If my sitting NYS Senate and Assembly members don’t have standing to challenge the usurpation of their constitutionally endowed law-making powers by the Governor and her minions in her Health Department, but the seemingly captured American Academy of Pediatrics has standing to challenge who the HHS director puts on his ACIP panel and how many vaccines they recommend children receive, then you should duck hard, because pigs can now fly.

The final truthbomb that jumped off the pages at me when I read this embarrassment of a legal ruling was the judge’s noting of the holy grail of today’s broken “healthcare” system, and that is the almighty $. Murphy points out (page 13) the sparsely discussed fact that vaccines recommended by ACIP enjoy the cushy benefit of being paid for by the government (with our tax dollars, of course). So, someone can get all the shots they want, but if the shot isn’t listed on ACIP’s schedule, then it’s not “free” to the consumer. They would have to pay out of pocket. Surely sales would plummet if the public had to open their wallets every time they (or one of their children) needed a shot.

Then there’s the other thinly reported fact that the drug manufacturers’ liability shield for injuries sustained by the public for taking a vaccine only extends to those shots that are listed on ACIP’s recommended schedule. Murphy skims over this around page 12, as if it’s an after-thought. Moreover, he couches it in such a way as to try to make the fact work for him in his argument against Kennedy’s and ACIP’s actions. Here again we see at center stage the holy grail of our pathetically captured healthcare system - the almighty dollar. If the manufacturers (many of whom financially support the Academy) will all of a sudden be subject to liability for the vaccines they make, then they will surely get slammed with injury lawsuits. Could this be the entire point of the Academy’s lawsuit in the first place? If so, then standing is even more clearly lacking.

A notable sidebar here… drug manufacturers are liable for the medicines they make, but they aren’t liable for the vaccines they make. You can thank Congress for that… both the one that made that law in the 1980’s, and the one today who refuses to change that law.

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Bottom line on Murphy’s ruling is, not only is his decision an absurd abomination of law, it’s also totally impermissible as a violation of judicial restraint. A judge (and especially a District Court judge) doesn’t have the power to invalidate the decisions of an Executive Branch agency when those decisions are discretionary and within the stated power of said agency. Separation-of-Powers is the cornerstone of our free nation. The fact that a wily federal trial court judge thinks he can undo two and a half centuries of our United States Constitution because he doesn’t like what a member of the President’s cabinet is doing is, in a word, ignominious - to say the least.

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