The Trump administration is aggressively trying to take advantage of the U.S. Supreme Court’s new conservative majority, digging deep into the court’s rulebook to seek quick action on divisive issues.
Since Justice Brett Kavanaugh took his seat Oct. 6, government lawyers have sought to stop trials over climate change and the census, get fast-track review on deportation powers, and clear President Donald Trump to put new limits on asylum bids. On Dec. 13 the administration asked the court to let Trump ban transgender people from serving in the military.
It’s too early to say how successful the administration will be with those efforts. Early signs suggest Chief Justice John Roberts and the court are in no rush to tackle Trump controversies, preferring to let the litigation play out in lower courts.
Critics see a disturbing pattern, saying the administration is systemically trying to circumvent the normal rules to get issues before a friendly Supreme Court.
“It has decided that the ordinary rules of appellate practice and process will pose no barrier to its desire to rush to the Supreme Court,” said Joshua Matz, a Washington lawyer and publisher of the “Take Care” blog, which analyzes Trump-related legal issues. “The Trump administration appears to view the Supreme Court as a willing ally rather than a neutral arbiter.“
The administration says it has been left with little choice. In court papers Dec. 13 seeking to let Trump bar transgender service members, Solicitor General Noel Francisco said federal judges have issued 25 nationwide orders over the past two years blocking administration initiatives.
“It is with great reluctance that we seek such emergency relief in this court,” said Francisco, the administration’s top Supreme Court lawyer. “Unfortunately, this case is part of a growing trend in which federal district courts, at the behest of particular plaintiffs, have issued nationwide injunctions, typically on a preliminary basis, against major policy initiatives.“
The latest filing aims to let the ban on transgender service members take effect while the administration appeals orders by trial judges blocking the policy. Francisco is already trying to press those appeals directly in the Supreme Court, bypassing liberal-leaning appeals courts.
Francisco is invoking a sparingly used Supreme Court rule that allows direct review when a case is “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.“
The administration took a similar approach, seeking to leapfrog the appellate level, when it asked the court in November to consider Trump’s move to rescind deportation protections for millions of young undocumented immigrants.
In both sets of cases, the filings came after the administration took the extraordinary step of setting deadlines for the appeals courts that were considering the issues. When the appeals courts didn’t rule by the specified date, Francisco went directly to the Supreme Court, urging the justices to decide the matter during the current term that runs through June.
A San Francisco-based appeals court has since ruled against the administration on the deportation policy, improving prospects for Supreme Court review. The justices probably will say in January whether they will hear the appeals.
In other disputes, the administration has sought emergency orders, in some cases repeatedly. In a lawsuit challenging the administration’s plan to add a citizenship question to the 2020 census, Francisco has filed three formal requests to shield officials from questioning or halt a trial in federal court in New York.
In a series of orders, the court blocked questioning of Commerce Secretary Wilbur Ross but otherwise let the case go forward.
The court also said it would do something Francisco didn’t request: hold an argument in February over what evidence can be considered. That decision put the case on a double track, perhaps with an eye toward the Census Bureau’s goal of beginning to print questionnaires in May.
After the court said it will hear arguments, Francisco sent the justices an unusual letter. While not making a formal request, he said the government “respectfully suggests that the court may wish to reconsider” letting the trial go forward. The court so far hasn’t acted, and it could choose to simply ignore the Nov. 26 letter.
The administration also tried twice to stop a sweeping lawsuit pressed by young people seeking to force the federal government to take steps against climate change. Although the Supreme Court has refused to take that step, it hinted strongly at concerns about the case. A federal trial judge has now halted the trial while the case is on appeal.
And earlier this week, Francisco asked the court to let Trump change the rules to automatically reject any asylum bid by someone who crossed the U.S.-Mexican border illegally. The court could act next week on that request.
The flurry of filings could backfire against the administration, said Orin Kerr, a constitutional law professor at the University of Southern California’s Gould School of Law.
“It could end up annoying judges at all levels of the judiciary,” he said.
At a minimum, the administration isn’t likely to get more than a few of its unusual requests granted, Matz predicted.
“It seems most unlikely that the Supreme Court is eager to decide the constitutionality of every controversial Trump administration policy this year,” Matz said. “But that is exactly what the solicitor general is asking the court to do.“
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