Trump Agenda Stuck in Legal Wrangling Despite Supreme Court Wins

President Donald Trump has cast successes at the US Supreme Court as broad endorsements of his authority to fire agency heads, shrink the government workforce and halt billions of dollars in federal spending.

Some lower court judges see it differently.

Supreme Court rulings are supposed to be the final word on disagreements over the law. But the growing number of decisions being issued with little explanation on an emergency basis — often referred to as the “shadow docket” — is creating even more legal wrangling.

Now, tensions are building not only between the executive branch and the courts, but also within the judiciary.

“This is not helpful at all for lower court judges,” said Dickinson College President John Jones, a former federal district judge in Pennsylvania confirmed during the George W. Bush administration. “You’re reading an abbreviated opinion from the Supreme Court like it’s a Rosetta Stone.”

The Justice Department has been arguing that the emergency track wins should translate into victories in other lawsuits against Trump’s agenda. Federal judges are pushing back, saying the high court isn’t giving them enough to work with.

This week, the Supreme Court stepped in to settle one such dispute that one of its earlier orders created. A Maryland federal judge had blocked Trump’s removal of Democratic members of the Consumer Product Safety Commission, saying it was different in key ways from a firing fight the justices resolved in the president’s favor on May 22.

In a two-paragraph order on Wednesday, the conservative majority said the district judge got it wrong, and the officials couldn’t keep their jobs while they pressed the merits of their lawsuit.

The problem, some judges say, is that more cases are reaching the justices on an emergency basis — often in the early stages, without oral arguments and with minimal or no explanation. These orders are frequently just a few paragraphs issued in weeks or even days, in stark contrast with argued cases that unfold over months and result in lengthy opinions offering more robust guidance.

‘Tea Leaves’

In yet another in the growing stack of firing cases, a Washington federal judge last week refused to let Trump oust Democrats from the Federal Trade Commission.

US District Judge Loren AliKhan said she wouldn’t read the “tea leaves” in the justices’ May 22 decision, a four-paragraph order that let Trump fire top officials at two other agencies. That ruling “weighs against” the dismissed officials, she said, but doesn’t settle questions over a 90-year-old precedent limiting a president’s firing power at federal agencies.

“It would be an act of judicial hubris” to base a decision on what the justices might do later, AliKhan wrote in her order reinstating one of the commissioners. She was “unsure of what to make of” the justices’ order, absent more details about what they intended or how they reached their outcome. An appeals court has temporarily paused her ruling.

A Justice Department spokesperson declined to comment.

A senior White House official who requested anonymity to discuss pending litigation said lower court judges aren’t respecting the spirit of the Supreme Court’s orders as well as the rulings themselves, and seemed to be taking extraordinary steps to avoid applying them to other cases. The official accused judges of defying the Supreme Court because of policy disagreements.

The conflicts are growing as the Trump administration has taken lower court losses to the justices on an emergency basis 21 times so far this year. Unlike cases the court hears on the merits, emergency cases usually don’t involve in-person arguments, robust written briefs or lengthy opinions that explain how the majority reached a decision. They don’t offer a rubric for lower courts to apply new precedents going forward.

For the Supreme Court’s 2023-24 term, the average length of a majority opinion was 5,010 words, according to Empirical SCOTUS, a blog that tracks data on the high court. The majority’s July 14 emergency order that allowed the administration to go ahead with Education Department layoffs — praised by Trump on social media as “a Major Victory” — was only 104 words.

There are rare exceptions, such as the fight over Trump’s birthright citizenship plan, in which the justices heard arguments and wrote a lengthy opinion. Still, the majority’s June decision — which Trump called a “GIANT WIN” on social media — left key issues unresolved for lower courts to sort through. The justices curbed judges’ authority to expansively halt government actions but didn’t completely rule out nationwide blocks. They didn’t touch the core question of whether Trump’s executive order is constitutional.

In an emergency order, the Supreme Court considers which side is ultimately likely to succeed on the underlying legal questions, but the justices also focus on the harm each side might suffer in the interim.

Shadow Docket

Tension on the Supreme Court over the escalating shadow docket activity predates Trump’s latest term in office. Justice Elena Kagan wrote in 2021 that the conservative majority’s use of the process resulted in decisions that were becoming “more unreasoned, inconsistent, and impossible to defend.” Justice Samuel Alito accused critics of portraying the process as something “sinister” in order to “intimidate the court or damage it as an independent institution.”

In remarks to a federal judges’ conference on Thursday, Kagan underscored her concerns about the challenges that emergency orders create for lower courts. The justices “don’t usually meet about shadow docket matters and discuss them in the way we do with merits cases,” she said. There is “a real responsibility that I think we didn’t recognize when we first started down this road to explain things better.”

The Trump administration’s 21 emergency requests in six months exceeds the total number brought by the Biden administration and during the combined presidencies of Barack Obama and George W. Bush, according to research by Stephen Vladeck, a Georgetown University law professor and prominent critic of the court’s use of the shadow docket.

The government has won 16 of the cases at least in part, even if only temporarily. The administration withdrew one application and largely lost four cases, including one filed by Venezuelans who were at risk of being sent to a notorious Salvadoran prison.

Trump’s wave of policies testing the bounds of presidential power has been met with a deluge of lawsuits, many of which have included requests by challengers for swift intervention by judges. The Justice Department, in turn, has quickly moved to at least temporarily halt the effects of lower court losses while it appeals. But that strategy hasn’t always worked.

It took just over two weeks for a federal appeals court in Boston to deny the government’s emergency request to resume cuts to scientific research grants that a district judge blocked. In a July 18 order, a three-judge panel said it had “no difficulty distinguishing” the facts of the case from the justices’ emergency order in April letting the administration cut teacher-training grants.

The Justice Department on Thursday asked the Supreme Court to intervene in the grant fight. In its latest emergency application the administration claimed that “district-court defiance” of the justices’ April order “has grown to epidemic proportions” in other funding cases.

A Boston federal judge this month rejected the Justice Department’s attempt to “misguidedly argue” that two other Supreme Court orders required her to let Trump fire Department of Health and Human Services workers. In the first order, the justices said Trump could broadly proceed with a push to shrink the federal workforce but didn’t rule on the lawfulness of any agency plan. In the other, the majority didn’t offer an explanation when it let layoffs continue at the Education Department.

The HHS case was likely to “wind its way up and down the appellate courts,” US District Judge Melissa DuBose wrote, but “this court declines the defendants’ invitation to short circuit that process.”

Soon after the Supreme Court ruled in the mass firing fight, the San Francisco federal judge handling that case rejected the government’s argument that it was effectively over. US District Judge Susan Illston wrote that the justices’ “terse order” was “inherently preliminary” and left issues unsettled.

With agencies carrying out layoffs following the Supreme Court’s order, she wrote, “the issues in this case remain of significant public importance.”

The Justice Department raced to a federal appeals court, which this week temporarily paused Illston’s latest order while it decides what to do. Should the government lose the latest round, it could bring the case back to the justices.

--With assistance from Suzanne Monyak and Greg Stohr.

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman

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