Rare Appeals of Temporary Court Orders Carry Risk for Justices

The US Supreme Court sidestepped extraordinary requests to intervene in litigation against the Trump administration and in doing so avoided turning on a spigot some legal scholars say would’ve been hard to shut off.

The Justice Department twice last month sought emergency requests to toss temporary orders that district courts had issued to block President Donald Trump from firing an agency head and to force the administration to disperse $2 billion in foreign aid.

Temporary Restraining Orders generally can’t be challenged and though the justices avoided ruling directly on either of Trump’s appeals, court watchers expect to see similar requests come to the court in the future. Entertaining them would be a dramatic shift in the rules that govern civil litigation and could invite others to file similar requests.

“This would basically open an emergency window at the Supreme Court for a potentially very large number of TRO reviews,” said Suzanne Goldberg, a Columbia University law professor who teaches civil procedure. “It could result in chaos.”

Opening Window

There’s a general rule that TROs can’t be challenged because they’re only in place for a short period of time–typically 14 days unless the district court extends it to 28. They’re designed to keep the status quo while the judge decides whether to issue a preliminary injunction, which pauses a government action while a legal challenge plays out and can be appealed.

It’s unlikely the court will want to jettison that general rule, said Vikram Amar, a UC Davis School of Law professor who teaches civil procedure and constitutional law.

Even disregarding the rule in one case “blows it up for everything,” he said. “Whatever standard they lay down is going to be one that is manipulable enough that all the other parties in other cases, in other contexts, are going to say well, we satisfy that standard too.”

In asking the Supreme Court to vacate a TRO that had stopped Trump from firing Office of Special Counsel head Hampton Dellinger, Acting Solicitor General Sarah Harris argued that the justices have the power under the All Writs Act, to review and vacate these provisional orders from the district court and have done it before.

She cited the court’s 2010 ruling in Brewer v. Landrigan and its 2008 ruling in Brunner v. Ohio Republican Party. In Brewer, the court allowed an execution to go forward in Arizona. And in Brunner, the justices stopped Ohio’s top election official from having to reprogram the state’s voter registration database, a move the Democrat said would’ve prevented people from voting.

Unprecedented Action

Steven Engel, who served as assistant attorney general in the Justice Department’s Office of Legal Counsel during Trump’s first term, said the administration had good arguments for appealing the TROs it did.

“These are rather aggressive exercises of the TRO power,” said Engel, a Dechert LLP partner. “One is spend billions of dollars. The other one is allow this man back into a federal agency to run the agency even though the president has said he doesn’t want him running the agency.”

Engel said he thinks the court will be asked to review other TROs, but he’s skeptical a ruling vacating one would dramatically change the legal standards.

The question appellate courts are going to be wrestling with is not can a TRO ever be subject to appellate review, but whether it has the effect of an injunction, he said. He added that plaintiffs are increasingly seeking TROs instead of preliminary injunctions.

Goldberg said the unprecedented volume of these orders follows unprecedented action.

“We have never seen as many TROs put in place to pause the federal government’s actions, but that is also because we have never seen the federal government taking this many likely unlawful actions that may cause irreparable harm in a matter of weeks,” she said.