How the Supreme Court Is Issuing Orders as Trump ‘Emergencies’ Return
When the Supreme Court cleared a path on Monday for President Trump to continue pursuing proposed restrictions on voting by mail, the justices laid out their reasoning in a 10-page opinion.
That explanation, characterizing lower-court rulings against the administration as premature, marked a departure from how the court had routinely handled emergency requests during the early months of Mr. Trump’s second term. It also illustrates how the justices’ rushed orders can create more confusion when they land in the middle of unfolding cases.
During Mr. Trump’s first year in office, the court was inundated with such fast-track filings, fielding 30 emergency requests related to his policies. But even as the court overwhelmingly sided with Mr. Trump, it ruled with little or no explanation of its reasoning in at least a dozen orders. Those brief orders, while technically temporary, had immediate and sometimes consequential impacts.
A year later, those trends have changed, for reasons that appear both structural and strategic.
Monday’s mail-in ballot order and a separate request to permit the president’s White House ballroom construction are just the third and fourth applications filed by the administration in Mr. Trump’s second year in office. And in the three in which the full court has ruled so far, the justices issued at least several pages of reasoning — and sometimes lengthy opinions — to explain their decisions.
The dramatically reduced number of applications makes evaluating the action of the justices in this moment difficult. Still, the fact that they are now more routinely explaining themselves in response to administration emergency requests shows how the court is adapting to the pace of the Trump era. It also suggests that the justices, who pride themselves in operating above the political fray, appear to have taken notice of complaints from the public, members of Congress and their own judicial colleagues about unexplained, consequential orders.
With a little more than two months until the midterm election, the pace of voting-related requests will almost certainly pick up. Monday’s opinion siding with the Trump administration was narrow and did not resolve the legality of the president’s proposed restrictions on mail-in voting.
Although the court’s conservative majority was more expansive in its reasoning than the court had typically been in Mr. Trump’s first year, their opinion coincided with fast-moving related litigation about the status of the president’s executive order. Mr. Trump had instructed the Postal Service not to mail ballots on behalf of anyone whose name was not on U.S. citizenship lists his administration is creating.
As a result, the justices did not deal with key issues that arose only after the emergency application was filed to them on July 27. For instance, the justices did not address new Postal Service regulations issued late Friday night. The court’s silence about the rules puzzled election law experts and all but ensured the issue would quickly return to the high court, a reminder of the temporary nature of the emergency docket. The justices themselves seemed to acknowledge they would revisit the issue.
Monday’s opinion, the majority wrote, “does not mean that any measure taken by the government to implement” the president’s order “will necessarily be lawful.” The majority opinion continued: “On that score, time will tell.”
In contrast to the court’s traditional “merits” cases, which arrive at the court after months or years, emergency requests are fast-tracked. The justices typically rule in a matter of days or weeks based on written filings, holding no oral arguments. They don’t usually sign or provide a vote count with the orders, which are designed to determine whether a policy can take effect while lower courts continue to consider whether it is legal.
The use of the fast track had risen dramatically in recent years before exploding as Mr. Trump returned to office. In 19 months, the president has already asked the justices to intervene far more times than George W. Bush and Barack Obama did during their 16 years in office combined.
Some of the court’s temporary orders meant the administration could strip deportation protections for hundreds of thousands of Venezuelans, discharge transgender troops from the military and fire tens of thousands of federal workers.
In two public appearances this summer, Justice Elena Kagan, one of the court’s three liberal justices, credited her colleagues on the conservative-dominated bench for mostly having “cleaned up our act” when it came to providing reasons for its emergency rulings.
That was a change from last summer, when Justice Kagan publicly criticized the court for not explaining itself. She has also previously described emergency orders as the court’s “shadow docket,” the preferred term of its critics. Her colleagues on the bench have made clear they dislike the term, preferring “emergency” or “interim” docket.
But in late July, she said that at least for now, she no longer thinks the “shadow docket” description is appropriate.
“We are more cognizant of the fact that it creates problems on the ground when you issue these rulings without any reasons,” Justice Kagan said during a judicial conference in Washington State, echoing similar testimony last month on Capitol Hill. She added: “More often we should give reasons, and more often we are giving reasons.”
The Supreme Court’s evolving approach to the fast-track docket comes as public opinion of the court remains close to a three-decade low, according to a Pew Research Center survey conducted in early July. The court’s favorable rating is 20 percentage points lower than in April 2021, the survey shows.
Experts who follow the court said the justices appear to remain split about whether and to what extent they ought to explain themselves to the public and to lower-court judges who must follow their temporary orders.
“The court is still struggling to establish an evenhanded and broadly respected approach to these applications,” William Baude, a law professor at the University of Chicago, wrote in an article called “The Interim Docket.”
When asked at a public appearance this spring whether the rise in emergency requests was harming the court’s reputation, Justice Amy Coney Barrett said bluntly: “I hate that docket.”
In writing, she explained in March that there are drawbacks to including detailed reasoning in the technically interim orders. Such language can tie the court’s hands when it must later give an issue deeper consideration.
“Interim applications routinely require the court to balance the lock-in risk of saying too much against the transparency cost of saying too little,” she wrote in a ruling related to parental rights in California.
Chief Justice John G. Roberts also suggested the need for a balancing act in a June opinion blocking the president from immediately firing Lisa Cook, a member of the powerful Federal Reserve Board of Governors.
“How much to say on our interim docket — and how much to say in response to a dissent — is not reducible to any mechanical formula; it is ultimately a matter of prudence, upon which reasonable minds can (and often do) disagree,” he wrote.
Still, the court has been writing more, at least when it has come to Trump administration cases.
The justices have also been more often availing themselves of another procedural mechanism to ensure some emergency requests receive more comprehensive review. Since last fall, they have declined to immediately resolve four emergency petitions. Instead, they essentially converted them into routine cases — scheduling oral arguments, then deliberating privately, before issuing lengthy written opinions as they did in the case of the Federal Reserve.
David Cole, the former national legal director of the American Civil Liberties Union, said that “the legitimacy of the court turns in significant part on the ability of both sides to present their arguments in a full-throated way and to have them considered carefully.”
When it comes to emergency requests from parties other than the Trump administration, the court has mostly continued its practice of providing little or no reasoning, according to the Georgetown law professor Steve Vladeck, who tracks such developments through his newsletter One First.
In March, the court intervened in a voting rights dispute, issuing an unsigned order that protected the congressional district of a New York Republican, without reasoning.
Two months later, there was again no reasoning when the justices ruled that a widely used abortion medication could continue to be prescribed by telehealth and sent to patients by mail. That time it was conservative Justice Samuel A. Alito Jr. who, in dissent, called out the majority for its “remarkable” and “unreasoned” order.
There have also been fewer opportunities for the court to write about Trump policies. Until filing the mail-in ballot request in July, Solicitor General D. John Sauer, the president’s top lawyer at the Supreme Court, had not made a single emergency ask since March.
The number of cases has been so small that drawing broad conclusions is difficult.
“But what does seem clear is that it’s just not true that the court is writing meaningfully more in these cases — at least on average,” said Professor Vladeck.
Mr. Sauer did not respond to a request for comment on the significant decline in emergency filings from his office.
But the change appears to be partly because of a slowing pace of executive orders from the president in his second year that have drawn legal challenges.
Analysts said another reason appears to be that the administration has strategically been declining to appeal all of its losses in the lower courts. The administration’s emergency requests are “prefiltered by the solicitor general for an assessment of success,” Jack Goldsmith, a Harvard professor, wrote in the Harvard Law Review.
The Justice Department did not, for instance, ask the Supreme Court to intervene when a lower court ordered the removal of the president’s name from the Kennedy Center. It likewise has not so far asked the justices to review lower-court actions blocking the administration’s efforts to punish major law firms.
Critics say no matter how the court handles emergency applications, they cut short the ordinary, time-consuming development of the facts in a case and legal arguments that percolate for months or years in the lower courts.
Kate Shaw, a University of Pennsylvania law professor, said she worried that Justice Kagan’s recent qualified defense of the court might “give the impression that the court is basically functioning appropriately, whatever one makes of particular decisions.”
The court, she added, is “badly in need of reform, and I don’t think modest changes to its practices on the shadow docket, or the occasional vote against Trump, change that fundamental fact.”