The Supreme Court Is Not Cowering Before Trump on the Shadow Docket
Nor is it taking a new approach.
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I have heard from a few people in recent days who think the Supreme Court is cowering before the Trump administration or, at least, is not adequately standing up to it.
Adam Liptak gave voice to a version of this view a few days ago. In contrast to the Court’s “signature . . . sweeping claims about the meaning of the Constitution,” he argued, the Court in the Trump cases has been issuing “a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government.” Liptak said this “new approach” was designed in part “to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts.”
Liptak’s stance is a little hard to understand. The cited cases with “sweeping claims”—on abortion, affirmative action, the Second Amendment, and the like—were decided on the Court’s merits docket. But the Trump cases have occurred on the emergency orders or “shadow” docket where, as Liptak acknowledges, the Court must move quickly, with impoverished briefing and process, to “decide whether to pause lower court rulings, themselves preliminary and tentative.” In this context, he correctly says, it is “understandable . . . that the justices may be reluctant to make grand pronouncements.”
I am not sure how to square these views, but I agree with this last point, and will flesh it out below. The Court as of this posting has issued six emergency orders on Trump 2.0 actions, including last night’s order in Noem v. Garcia. It is too early to know whether the Court is acting wisely on its emergency docket. Yet thus far it has neither bowed to the president nor proceeded in an untoward way.
Merits v. Shadow Docket
As Liptak notes, the Court in its emergency orders sorts out early in a case the baseline assumptions about how litigation will proceed. It is typically addressing injunctive relief issued by district courts against and soon after government action, almost always before discovery and always before trial and regular appeal. At such an early stage, “bold” and “sweeping” decisions are not appropriate. Indeed, definitive merits decisions are frowned upon in emergency orders. “[N]arrow and legalistic rulings that seem calculated to avoid the larger issues” are exactly what the Court is supposed to be issuing on the shadow docket.
Dissents from the emergency orders in the Alien Enemies Act (AEA) case and the education grant case criticized the Court for deciding too much on the merits (except, of course, when the main dissent in the AEA case cheered the Court’s ruling on the merits of the judicial review and notice issues). There is a genuine question whether the Court decided too much, or correctly, in those cases, or provided enough reasoning for its rulings. But it makes no sense for the Court to go bigger and bolder on the shadow docket.
The Win-Loss Record
Counting wins and losses on the emergency orders docket can be hard because the cases are not of equal importance. But still, it is very misleading to suggest that the Court is shrinking from confronting the Trump administration in its emergency orders. It has issued six orders thus far, all in response to government applications. By my count the government has two victories, one loss, two split decisions, and a non-decision:
Bessent v. Dellinger. The Court “held in abeyance” the government’s application to vacate the district court order barring the president’s removal of Hampton Dellinger from the Office of Special Counsel. As the Court sat on the application, the court of appeals unanimously granted a stay and Dellinger dropped the case. This counts as a non-decision even though the president’s firing was delayed for 14 extra days while the Court refused to act.
Department of State v. AIDS Vaccine Advocacy Coalition. The Court denied an application to vacate an order requiring the government to disburse certain foreign assistance funds but required the district court to give “due regard for the feasibility of any compliance timelines.” The government must for now follow the injunction to disburse the funds, so this is a win for plaintiffs.
Department of Education v. California. The Court granted the government's application for a stay that has the effect of allowing it to cancel education-related grants as litigation proceeds. The Court also says it is likely that a district court lacks power under the Administrative Procedure Act to order payment of money and that suits of this sort are properly brought in the Court of Claims. This is a win for the government.
Trump v. J.G.G. The Court granted the government’s application to vacate the temporary restraining orders enjoining deportations pursuant to the Alien Enemies Act and ruled that habeas is the proper venue, as the government argued. But the Court also said the detainees get some AEA judicial review and “must receive notice … that they are subject to removal. … within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue” before removal. It also ruled that habeas is available in the removal context despite a contrary suggestion in Thuraissigiam. I and others think this is more of a loss than a win for the government, but others disagree, so I will call it a split decision.
OPM v. Am. Federation of Gov’t Employees. The Court granted (due to lack of standing) the government’s application for a stay of a district court’s preliminary injunction preventing it from firing probationary employees at six federal agencies. This is a narrow but clear win for the government.
Noem v. Garcia. The Court unanimously granted and denied in part the government’s application to vacate the district court order directing the government to “facilitate and effectuate the return of” Abrego Garcia, who was wrongfully removed from the United States. The Court retained the essence of the district court order and required the government to “facilitate” Garcia’s release from custody in El Salvador and to “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” It also directed the district court to clarify the executive branch’s duty to “effectuate” Garcia’s return “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Commentators have a wide range of views about this ambiguous decision, though most think it is a defeat of sorts for the government. However because of the clarification and deference directive, I’ll call it a split decision.
Two emergency order wins for the government, one loss, two split decisions, and a non-decision hardly count as the Court not standing up to Trump. Yes, the Court made important and contested procedural rulings in three of these cases, some of which favored the government and some of which favored plaintiffs. But neither the AEA nor the Education Department ruling for the government was close to a final win on the underlying substantive issues (they were basically about which court had to hear the merits of the claims), and Garcia was non-final and ambiguous.
These six cases and the other four pending on the emergency docket are presumably ones the government thinks it has the best chance of winning. Trump has done other things that are pretty obviously illegal and that are now enjoined in the lower courts. But not everything he has done is obviously illegal. Many of the issues on the Court’s emergency orders docket—the legitimacy and proper scope of nationwide injunctions, the proper scope of the president’s removal power, the proper venue for AEA challenges and monetary relief against the government—are contestable, which is why the government brought those issues to the Court.
The government has not (yet) sought emergency relief from many lower court orders—for example, from the injunctions in the law firm cases, from the substance of the birthright citizenship injunctions, in a case seeking to compel the government to disburse funds to grant recipients, and in another concerning immigration enforcement at religious establishments. When one looks at the lower court injunctions against the government that lack requests for emergency relief, and then considers that the issues quickly elevated to the Court’s emergency orders docket are among the legally most contested, the government’s very modest win-loss record is seen in its proper light.
Temporizing and Prudence
The growing number of emergency orders requests involving Trump administration actions present a novel challenge for the Supreme Court. Trump is taking a moonshot on executive power, which invariably puts the Court in a tough position, no matter how it ultimately rules. His administration and administration-adjacent supporters, and many Republicans in Congress, have been loudly hostile to the federal judiciary, including in some instances to conservatives on the Court. And while the Court is in a way being cheered on by Democrats these days, they have been thrashing the Court for much of the last decade.
So the Court that is so important as an ultimate check on Trump is not in the greatest of institutional positions. This is not a reason for it to recoil; but it is a reason to proceed with even more prudence than usual. The Court has to manage its emergency docket in a way that preserves its limited resources and that sets itself up ultimately to make an informed decision with the greatest possible consensus (or to promote such decisionmaking in the lower courts).
Liptak says that the “alternative” to issuing “grand pronouncements” on the shadow docket is for the Court “to stay out of the way entirely and let appeals proceed in the usual way, at a stately pace that would in the fullness of time produce lasting decisions.” If he is suggesting that the Court should not review emergency order requests but defer “entirely” to what the lower courts do on interim or emergency relief, that is neither right nor the historical practice. Such an approach renounces the Court’s legitimate role—reflected in statutes, rules, and precedents—as the supervisor of the federal court system on emergency orders. It would give final say on emergency orders to lower courts, with the perverse incentives that the lack of disciplining Supreme Court review would create. I see no reason for such abdication of the Court’s important historical responsibility over emergency lower court orders.
Yes, the Court should be careful in issuing emergency orders because strong and frequent interventions can be unprincipled or imprudent and can “invite more and more emergency application requests” that swamp the Court. But the Court has a responsibility under governing law to supervise lower court emergency orders. And it has many discretionary tools beyond a binary grant or denial of a stay (or related binary choices) to help it “make the most informed and best decision,” as Justice Kavanaugh put it in Labrador v. Poe. These tools include “taking more time (if available), ordering supplemental briefing, … inviting amicus briefs[,] … oral argument or … certiorari before judgment,” as well as nudging lower courts about implementing orders or deciding some issues and not others. Yes, there are legal tests for issuing (and vacating) stays and injunctions, but they are far from determinant, and the shadow docket on the whole is a place of discretionary decisionmaking by standards, not rules.
One element of the Court’s discretion is temporizing—delaying decisions or deciding in ways that seek to bring advantage later. Temporizing on the shadow docket is nothing new and done right it can be fruitful.
I have already explained the advantages of temporizing generally and in the foreign assistance and Dellinger cases. Two stand out among the newer cases. The stay in the Office of Personnel Management case leaves that issue for another day with a better plaintiff. And the AEA decision allows for factual and legal development (and disagreement) by lower courts while reserving in the end all of the core issues about the meaning of the AEA and the legality of Trump’s detentions under it to the Supreme Court in light of all of this lower court information. The ruling accomplishes this while making clear that all nine Justices believe habeas must be available and that the Trump administration must give notice and an opportunity to be heard.
One cost of temporizing is that an un-enjoined Trump administration action might later be deemed unlawful, just as the Court could permit an injunction of an administration action that it later deems lawful, thus depriving the president of legitimate power in the interim. These are unfortunate but inevitable elements of emergency orders. Such orders are always made with incomplete information and briefing, and sometimes—see, for example, here and here—the baseline courts set turn out to be wrong when the Court considers the case after full information and briefing.
Conclusion
It is still very early in the Supreme Court’s engagement with the Trump administration. But six cursory emergency orders do not support the view that the Court is avoiding a showdown with the president or is acting in any way untoward.