Conservative Justices Split on Denying Trump Guard Deployment

A crack in the Supreme Court’s conservative bloc emerged as the justices refused to lift a temporary order preventing President Donald Trump from deploying National Guard troops in Chicago.

A key issue driving that wedge in an emergency order on Tuesday was language in the federal statute which says the president may deploy National Guard units when he’s unable to execute federal law with “regular forces.”

The court’s three-page unsigned ruling said the term “likely refers to the regular forces of the United States military,” as it ruled that Trump failed to show authority to call troops to Illinois under the stated premise of aiding immigration enforcement and efforts to fight violent crime.

The decision drew separate dissents from Justice Samuel Alito, joined by Justice Clarence Thomas, and Justice Neil Gorsuch.

Justice Brett Kavanaugh authored a separate opinion noting he concurred in the judgment but thought the majority’s rationale on the president’s powers went too far.

Cases on the emergency docket, such as this one, typically don’t include a breakdown of the justices behind the order, but any decision would require at least two conservatives joining the three liberals.

The majority reasoned that before a president can federalize the National Guard, “he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function.”

“The extremely limited circumstances under which the federal government can call up the militia over a state’s objection do not exist in Illinois,” state Attorney General General Kwame Raoul said in a statement after the ruling.

The order marked the rare instance in which Trump has lost a case reaching the justices on their emergency docket. Alito, Gorsuch, and Kavanaugh in their written opinions expressed frustration with deciding the case on an expedited timeline–typically a complaint made by their liberal colleagues.

Alito offered the most extensive criticism, including over a Oct. 29 order calling for the parties to weigh in on the question of whether “regular forces” refers to the US military.

That veered from the controversy presented in the case at the lower courts, Alito argued, where both parties agreed “regular forces” meant civilian law enforcement.

“Injecting another issue into the matter was unwise, and suggesting views on a host of important questions without adequate briefing, consideration, or explanation is imprudent,” said Alito.

Judicial Deference

Alito also chided the district court judge who oversaw the initial dispute for not giving even a “modicum of deference” to Trump’s rationale for deploying the National Guard in the state.

US District Judge April Perry, a Biden appointee who blocked the deployment, found the administration’s claims about conditions on the ground in Chicago “unreliable.”

Both precedent and a “humble appreciation of the role of a single federal judge” demanded Perry give more weight to the president’s claims, Alito wrote.

His fellow justices, he said, had also overstepped their roles.

“The Court fails to explain why the President’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose,” Alito wrote.

Docket Dispute

In a separate dissent, Gorsuch said the court should’ve granted the stay on the limited record before it and left all the other “weighty questions” for another case.

The court’s liberals routinely push back hard on rulings issued on what critics call the shadow docket. They’ve shown a desire to draw public attention to how consequential questions are handled in such expedited fashion.

Justices Ketanji Brown Jackson and Sonia Sotomayor have offered some of the most strident criticism. Elena Kagan reserves her strongest dissents when arguing that the majority disregards precedent and to call attention to the lack of explanation behind such orders.

The court’s move in October to ask for supplemental briefing came after Georgetown University law professor Martin Lederman submitted a friend-of-the-court brief arguing that “regular forces” referred to the military and that meant Trump lacked authority to deploy the National Guard.

Gorsuch, Trump’s first nominee to the court, noted in his dissent that the Supreme Court has never weighed in on the meaning of the statutory text in question, “let alone explored its interaction with other statutes in the field or the Constitution.”

Tuesday’s order could carry nationwide implications, as federal judges have blocked similar deployments in Los Angeles, Memphis and Portland, Oregon.

A judge also blocked the deployment of the National Guard in Washington as likely unlawful, but that ruling was stayed by the US Court of Appeals for the D.C. Circuit.

The case is Trump v. Illinois, U.S., No. 25A443, stay denied on 12/23/25.