By Andrew Chung
(Reuters) -Since President Donald Trump returned to office in January, his administration has bombarded the U.S. Supreme Court with emergency requests seeking immediate intervention to free up his initiatives stymied by lower courts. The strategy is paying off.
Once a rarely used pathway to the nation’s top judicial body, its emergency docket now bulges with an unprecedented volume of requests for rapid attention by the justices in clashes over Trump’s far-reaching executive actions.
As the Republican president tests the limits of executive power under the U.S. Constitution, Trump’s administration has made 19 emergency applications to the court in less than five months, with one other such application filed by lawyers for migrants held in Texas who were on the verge of deportation.
The court already has acted in 13 of these cases. It has ruled in Trump’s favor nine times, partially in his favor once, against him twice and postponed action in one case that ultimately was declared moot.
Trump’s wins have given him the green light to implement contentious policies while litigation challenging their legality continues in lower courts. The court, for instance, let Trump revoke the temporary legal status granted for humanitarian reasons to hundreds of thousands of migrants, implement his ban on transgender people in the U.S. military and take actions to downsize the federal workforce, among other policies.
The court’s 6-3 conservative majority includes three justice who Trump appointed during his 2017-2021 first presidential term.
Six more emergency requests by the administration remain pending at the court and one other emergency request was withdrawn. Among the requests still to be acted upon are Trump’s bid to broadly enforce his order to restrict birthright citizenship, to deport migrants to countries other than their own including politically unstable South Sudan and to proceed with mass federal layoffs called “reductions in force.”
Emergency applications to the court involving Trump policies have averaged about one per week since he began his second term. His administration’s applications this year match the total brought during Trump’s Democratic predecessor Joe Biden’s four years as president.
“The Trump administration uses every legal basis at its disposal to implement the agenda the American people voted for,” White House spokesperson Harrison Fields told Reuters. “The Supreme Court will continue to have to step in to correct erroneous legal rulings that district court judges enter solely to block the president’s policies.”
‘STRONG CASES’
The administration has “not sought Supreme Court review in all the cases it could, and part of the story may be that the government is appealing what it thinks are strong cases for it,” said Sarah Konsky, director of the University of Chicago Law School’s Supreme Court and Appellate Clinic.
Georgetown University law professor Stephen Vladeck, who wrote a book about the court’s emergency docket, said in a blog post on Thursday that the results favoring Trump should not be attributed only to the court’s ideological makeup.
At a time when Trump and his allies have verbally attacked judges who have impeded aspects of his sweeping agenda, there is a “very real possibility that at least some of the justices … are worried about how much capital they have to expend in confrontations with President Trump,” Vladeck wrote.
The onslaught of emergency applications has diverted the attention of the justices as they near the end of the court’s current term. June is usually their busiest month as they rush to finish writing opinions in major cases. For instance, they have yet to decide the fate of Tennessee’s Republican-backed ban on gender-affirming medical care for transgender minors.
Among the emergency-docket cases, the court most recently on June 6 allowed Trump’s Department of Government Efficiency, a key player in his drive to slash the federal workforce, broad access to personal data on millions of Americans in Social Security Administration systems and blocked a watchdog group from receiving records on DOGE operations.
The court also has allowed Trump to cut millions of dollars in teacher training grants and to fire thousands of probationary federal employees.
On the other side of the ledger, the court has expressed reservations about whether the administration is treating migrants fairly, as required under the Constitution’s guarantee of due process. On May 16, it said procedures used by the administration to deport migrants from a Texas detention center under Trump’s invocation of a 1798 law historically used only in wartime failed basic constitutional requirements.
The justices also declined to let the administration withhold payment to foreign aid organizations for work already performed for the government.
QUESTIONS OF TRANSPARENCY
Trump turned to the emergency docket during his first term as well. His prior administration filed 41 such applications to the court. During the 16 years prior, the presidential administrations of Republican George W. Bush and Democrat Barack Obama filed just eight combined, according to Vladeck.
The court has quickly decided weighty matters using the emergency docket in a way often at odds with its traditional practice of considering full case records from lower courts, receiving at least two rounds of written briefings and then holding oral arguments before rendering a detailed written ruling.
It is sometimes called the “shadow docket” because cases often are acted upon without the usual level of transparency or consideration.
Some recent decisions on the emergency docket have come with brief opinions explaining the court’s reasoning. But typically they are issued as bare and unsigned orders offering no rationale.
Konsky noted that the justices sometimes designate emergency cases for regular review with arguments and full briefing.
“But in any event, the emergency docket raises complicated questions that are likely to continue to play out in the coming years,” Konsky said.
Among Trump’s emergency applications this year, oral arguments were held only in the birthright citizenship dispute.
The liberal justices, often findings themselves on the losing side, have expressed dismay.
Once again “this court dons its emergency-responder gear, rushes to the scene and uses its equitable power to fan the flames rather than extinguish them,” Justice Ketanji Brown Jackson wrote in a dissent in the Social Security data case.
“The risk of error increases when this court decides cases -as here – with barebones briefing, no argument and scarce time for reflection,” Justice Elena Kagan wrote in the teacher grants case.
Conservative Justice Samuel Alito defended the emergency docket in 2021, saying there is “nothing new or shadowy” about the process and that it has wrongly been portrayed as sinister.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
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