Quick Supreme Court rulings keep Trump agenda moving forward, even as he loses in lower courts

WASHINGTON — As the Trump administration is routinely striking out in the lower court system, it is increasingly turning to the U.S. Supreme Court for relief — ramping up requests for emergency rulings that often give a temporary green light to President Donald Trump’s policies as longer legal battles play out.

At a pace unmatched by prior administrations, Trump’s lawyers have filed nearly two dozen emergency requests via the court’s so-called "shadow docket" or "emergency docket" system. That move allows the administration to seek rapid rulings without the traditional monthslong process of presenting oral arguments and awaiting a formal written opinion.

The administration’s legal strategy appears to be working. A Supreme Court stacked with six conservative justices, including three Trump appointees, has overturned lower court decisions more than a dozen times over the past nine months, giving the administration the ability to proceed with its aggressive immigration tactics and sweeping overhaul of the federal workforce.

But the increased reliance on the shadow docket raises questions about transparency and how lower courts are meant to interpret the rulings without the guidance of written opinions, said legal scholars interviewed by Newsday.

"It is as fundamental to our system of judicial process as can be that when the court decides a matter, especially a matter of significant importance, it needs to explain its reasoning. And what has been happening is that the Supreme Court has been issuing these decisions of massive consequence with minimal and in some cases, no explanation," said James Sample, a constitutional law professor at Hofstra Law School.

Hundreds of cases

The administration’s rush to get before the Supreme Court comes amid a deluge of federal lawsuits against the second Trump administration — more than 350 so far — with district and appellate court judges often ruling Trump’s actions unconstitutional and illegal. Since Trump returned to office, 28 federal court rulings have gone against the administration and nine in favor, according to the court tracking website Lawfare.

In response to unfavorable rulings, the current Trump administration has filed 23 emergency requests seeking intervention from the Supreme Court, with the court siding with Trump in 17 of those cases, according to the court tracking website SCOTUSblog.

Among the wins the Supreme Court has granted to Trump recently — overturning a California district court ruling that barred immigration enforcement agents from detaining suspected undocumented immigrants based solely on their racial appearance and language spoken; overturning a Boston district court ruling that blocked the deportation of migrants to South Sudan with no ties to the embattled African nation; and pausing a Washington district court order that would have blocked the Pentagon from implementing Trump’s ban on transgender service members.

The Trump administration’s use of emergency applications in the first half of this year "represents an all-time high," according to a recent analysis conducted by researchers Jonathan Kastellec of Princeton University and Anthony R. Taboni of the University of Texas at Austin.

In Trump’s first term, his administration filed 41 emergency requests over four years. The Biden administration filed 19 such requests over four years, and Presidents Barack Obama and George W. Bush only filed eight emergency requests over their combined 16 years in office, according to a database compiled by the researchers.

The White House did not immediately respond to a request for comment, but administration officials including Trump senior adviser Stephen Miller and Attorney General Pam Bondi have repeatedly defended the use of the emergency docket, accusing lower court judges of trying to "usurp" Trump’s executive powers by temporarily blocking some of his major initiatives, including the widespread firings of federal workers early in his administration and his freezing of $5 billion of congressionally appropriated foreign aid funding.

"There is a troubling and dangerous trend of unelected judges inserting themselves into the presidential decision-making process," White House press secretary Karoline Leavitt said during a May 29 press briefing, when she chided the lower courts in prepared remarks at the start of the briefing.

Temporary orders

Legal scholars note that the judicial branch was designed by the nation’s founders as a check on the executive and legislative branches of government and that several lower court rulings against Trump’s actions have been issued by Republican appointees.

Most of the Supreme Court’s Trump-related emergency orders are temporary, with the cases expected to wind their way through the lower court system again and back to the Supreme Court for a traditional hearing. But by the time that process plays out, it will likely be too late to roll back the impact of some of Trump’s actions if the court ultimately deems them unconstitutional, said Jenny Breen, an associate professor of law at Syracuse University’s College of Law whose research focuses on the Supreme Court.

"I think the question with a lot of these cases that are happening right now, is what will have happened in the meantime," Breen said. "So many people have already been fired and out of work for months ... If the court rules in favor of those workers, how many are realistically going to come back? If you’ve been deported to a foreign country, what are the odds that you’re coming back?"

In July, for example, the Supreme Court issued an unsigned emergency ruling allowing the Trump administration to move ahead with widespread layoffs across the federal government, by lifting a lower court’s temporary pause on the layoffs. The original lawsuit, filed by the American Federation of Government Employees union, contended that only Congress has the authority to dismantle or dramatically restructure federal agencies.

The case is expected to wind its way back to the Supreme Court for a full hearing, but not before tens of thousands of federal employees risk losing their jobs, union leaders have said.

Earlier this month in an emergency order, Chief Justice John G. Roberts overturned a lower-court ruling that would have forced Trump to release $4 billion in congressionally appropriated foreign aid that he is attempting to claw back. Roberts said in a written ruling the decision was temporary to allow the court time to weigh the broader argument.

But nonprofits and global health agencies awaiting funding say the pause has already stopped life-saving work aimed at stopping the spread of diseases like Malaria and HIV/AIDS.

No written rulings

The blitz of emergency rulings — often without written rulings — has created a sense of confusion in the legal community, as lower court judges who usually pore through legal documents and cite past Supreme Court precedents to issue their rulings have no detailed explanation for why their rulings are invalid, Breen said.

"The way that our judicial system works, the Supreme Court has had a kind of acceptance by the public for their authority based on the notion that they're applying the rule of law and that they're doing so in a fair and impartial way," Breen told Newsday in a phone interview. "In order to do that, you have to give reasons for your thinking, and your reasons have to be grounded in the law ... there are lots of places where people can disagree on the law, but there must be reasons given.

"What we're seeing in the shadow docket cases," Breen said, "is literally no reasons given or the best case scenario, two sentences of reasons given, and this is completely contrary to the work of the courts and what the Supreme Court should be doing."

By Laura Figueroa Hernandez

laura.figueroa@newsday.com@Laura_Figueroa

Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.