Bonus 109: The Spring 2025 Emergency Docket

The second Trump administration's most controversial policy initiatives are likely to reach the Court quickly. The question will then become what lessons (if any) the justices have learned since 2017.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I was initially thinking of writing about Senator McConnell’s floor speech on Monday—in which, while lauding Judge Jones for her behavior at last Thursday’s Federalist Society convention, the minority leader described me as “one of the field marshals of the academic project to undermine the judiciary.” But leaving aside that I don’t have a baton, I don’t think there’s much to add to what I already wrote on Monday—and I’m inclined to leave it there.

Instead, I thought I’d turn attention back toward the Court—and, more specifically, toward what some of President-Elect Trump’s policy proposals and proposed appointments may portend for what the docket is going to look like come the spring. Indeed, it’s not hard to envision five things happening in quick succession across an array of Trump administration initiatives: (1) the new administration (or the President himself) adopting some massive, controversial policy shift; (2) litigants challenging that shift in judicial forums in which they are more likely to receive a friendly reception;¹ (3) district courts issuing nationwide injunctions against those policies; (4) courts of appeals refusing to “stay” those nationwide injunctions; and (5) the Trump administration asking the Supreme Court to do so. In a matter of weeks, the justices could be asked to weigh in on everything from efforts to curtail birthright citizenship to the proroguing of Congress to allow for involuntary recess appointments to the use of the military for immigration enforcement to, well, you get the idea.

The question, to me, is not whether this is going to happen; even if we don’t know which policies are coming, at least some of this seems all-but inevitable. Rather, the question is whether the Court is going to behave any differently this time around than it did when faced with similar behavior during the first Trump administration. Indeed, it was that behavior that prompted me to pay closer attention to emergency applications in the first place—and to write about the shadow docket, first in the specific context of the Trump administration, and then more generally.

As I explain below the fold, there’s reason to believe that this time might indeed be different in at least four respects—three of which ought to weigh in favor of a bit more reluctance on the Court’s part to intervene; and one of which is, at best, a mixed bag. What’s impossible to predict is how those competing considerations will cash out if and when the justices are asked to apply them. But it seems safe to say that, if nothing else, (1) there will be a flood of emergency applications from the Trump administration by the end of the current term; and (2) the Court’s behavior on the Spring 2025 emergency docket will be much more visible and accountable than its behavior during the first Trump administration—which, no matter what results it produces, is almost certainly a good thing.

D. John Sauer, President-Elect Trump’s designee to become Solicitor General, arguing Trump v. United States in April 2024 (William Hennessy)

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The Emergency Docket During the
First Trump Administration

As I wrote about at the time, one of the obvious causes of the uptick in major Supreme Court rulings on emergency applications during the first Trump administration was litigation involving the administration itself. Starting with the second iteration of the “travel ban,” the Trump administration sought emergency relief from the Supreme Court 41 times in four years. By contrast, over the previous 16 years, the Bush and Obama administrations had, combined, asked for emergency relief eight times. We can debate whether the Trump administration was reacting to unprecedented lower-court hostility; whether the lower courts were reacting to unprecedented behavior by the executive; or some combination of both. But what can’t be gainsaid is that the justices not only largely acquiesced in this behavior (granting at least some relief in 28 of the 36 applications that produced full-Court rulings), but that the grants reflected three different troubling sets of behaviors:

1. Not writing. Although the practice predated 2017, the pattern of the majority declining to providing a rationale even when granting emergency relief really took off in the first Trump administration. Across all of the Trump applications, the Court produced only two majority opinions—in the June 2017 ruling on the second iteration of the travel ban and in the July 2020 ruling clearing the way for the resumption of federal executions. Thus, even as the Court, time and again, cleared the way for policies that lower courts had blocked to go into effect, it almost never explained why. The absence of explanations, in turn, became that much more troubling as time went on and the justices at least appeared to be behaving inconsistently—by not intervening, e.g., when the Biden administration presented similar arguments for emergency intervention.

2. Watering down irreparable harm. Even as the Court wasn’t writing, it appeared to embrace (and subsequent opinions have suggested that it has embraced) a remarkably automatic view of irreparable harm when federal policies are blocked by lower courts—on the idea that the federal government suffers irreparable harm whenever it is blocked from even temporarily enforcing its policies. I’ve written before, at length, about the flawed analytical foundations on which this position rests. But especially in retrospect, there’s little doubt that at least a majority of the justices regularly embraced this view during the first Trump administration—which, among other things, led to emergency applications turning almost entirely on the justices’ preliminary (and often premature) views of the merits.

3. Almost never returning to the merits. Finally, the first Trump administration cases uniquely highlighted a new problem with the Court’s treatment emergency applications—that almost all of those cases never made it back to the Court for plenary review. With the solitary exception of the third iteration of the travel ban, none of the federal policies that the justices were asked to put back into effect during those four years ever produced a merits ruling from the Court (a handful were still pending in 2021 when President Biden came to office and rescinded the policies). Thus, to a degree we’d never seen before, President Trump was allowed to enforce an array of policies, especially in the immigration field, that no court ever did (or ever would) uphold as lawful. It was, as I’ve written, winning (or, at least, #winning) by not losing.

What’s Different This Time, I:
The Shadow Docket is a Thing

In thinking about why this time around might be different, the first and most obvious point is the simple fact that we’re all paying attention to emergency applications to a degree that we just weren’t during the first Trump administration. Public awareness of and attention to this behavior really didn’t explode until after the Court allowed Texas’s six-week abortion ban to go into effect in September 2021—7.5 months after President Biden came to office. Aside from the academic and popular writing of an annoying law professor and a stray reference in Justice Sotomayor’s dissent from a grant of emergency relief in an immigration case in September 2019, there wasn’t the kind of focus on this behavior, as such, that we see today.

Now, in contrast, we have justices regularly discussing their behavior on emergency applications, both in their opinions and at judicial conferences. Those opinions, in particular, provide useful yardsticks against which to measure future rulings by the Court. We have much more nuanced public (and media) understandings of what’s “normal” and what isn’t when it comes to emergency applications (to take one small example, that there could be a difference between the number of public dissents and the actual vote). We even have the Court adopting procedural accommodations with respect to at least some especially high-profile emergency applications—kicking a bunch to the merits docket for plenary review (something it didn’t do at all during the first Trump administration); and holding oral arguments on three applications (two in 2022; one in 2024) after not holding full Court arguments on a single application since the early 1970s.

And the result of that should be a fair amount more transparency about the significance of even unsigned, unexplained rulings that put blocked federal policies back into effect. Simply put, we won’t be debating, this time around, whether all of this is even a thing; we’ll jump right to whether the Court’s machinations are justified. That strikes me as a net positive—not just in pushing the justices to be more careful in how they handle these cases, but in raising public awareness of the results in individual cases and of the Court’s institutional behavior, more generally.

What’s Different This Time, II:
The Court Has Less Help

The second big difference between the first Trump administration and the second is one I’ve already written about—that the Court will have less help from the other branches of government in checking real or perceived excesses by the executive branch this time around. It was not for nothing that, during the first Trump administration, the Court knew that there were at least some speed brakes on the President in the form of more moderate Republican senators whose votes were decisive (e.g., John McCain), and, from 2019-21, the Democratic-controlled House. This time around, the Court knows that, at least for the next two years, any brakes in Congress are likely to be ineffective, at best. That may not affect individual justices’ analysis of individual cases, but it will be both (1) impossible for them to miss in the aggregate; and (2) a reason why at least some of them might be inclined to think more carefully before freezing lower-court rulings that are adverse to Trump.

What’s Different This Time, III:
Justice Barrett

Speaking of justices whose behavior might evolve, there’s both an obvious way and a subtle way in which the changes in the Court’s composition will matter: Justice Barrett’s October 2020 confirmation to replace Justice Ginsburg. There is just no question, as I’ve documented elsewhere, that Barrett’s arrival coincided with (and, indeed, caused) a dramatic uptick in the COVID-related cases in which the Court voted to grant emergency relief. Thus, a superficial reaction would be that, as opposed to dealing with a 5-4 Court for most of his first term (including, for almost two years, one in which Anthony Kennedy was the median justice), Trump has a 6-3 Court now.

But Justice Barrett has already undergone a remarkable evolution in her approach to emergency applications. Starting with a cryptic but undeniably important concurrence in the Court’s denial of an October 2021 emergency application by Maine health care workers challenging a vaccination mandate, Barrett has shown not just more nuance in her approach to emergency relief, but more hesitancy, across the board, about when the Court should grant it. To the former, during the most recent term, Barrett joined the three Democratic appointees in more emergency applications with divided votes than any of the other Republican appointees. To the latter, her separate opinions respecting emergency relief have largely circled around the same theme—that emergency relief is a matter of discretion, and that the Court should think carefully before granting it. Thus, it wouldn’t surprise me at all if, in emergency applications from the second Trump administration, Barrett will continue to be the Republican appointee who votes most often with the Democratic appointees.

What’s Different This Time, IV:
Which Chief Justice Roberts Shows Up?

If that pattern holds, then that means that, when the Court is closely divided, it will once again be Chief Justice Roberts who holds the median vote in ideologically charged emergency applications. I know our memories are short, but this was exactly the position he held during the October 2018 and October 2019 terms—when the Court regularly split 5-4 on emergency applications, and the Chief Justice was the decisive vote one way or the other. Thus, the Court voted 5-4 to put several Trump policies back into effect during this window, and to clear the way for the resumption of federal executions; but it also voted 5-4 to leave in place a lower-court injunction against a major Trump administration asylum rule and to not block a bunch of early state COVID mitigation policies. The only justice in the majority across all of those rulings was Roberts; as he went, so did the Court.

Nor was this just about Roberts as the median vote; even after Justice Barrett’s confirmation, there were a slew of high-profile 5-4 rulings on emergency applications in which Roberts joined the three Democratic appointees in dissent—including a California COVID case in April 2021; the Texas abortion case in September 2021; the Alabama redistricting case in February 2022; and an important Clean Water Act case in April 2022.

The question, of course, is whether that Chief Justice Roberts re-emerges, or whether we see the Chief Justice Roberts of OT2023—whose (apparent) sharp turn to the right was perhaps the most significant single thematic development of the term. And that’s where I come back to the Court being on an island this time around. Whatever else one might say about Chief Justice Roberts, he’d be the last justice who’d be either oblivious or indifferent to that reality. The upshot is that how much the Court’s behavior on emergency applications in 2025 resembles its behavior in Trump’s first term is likely going to come down to Roberts—and how much the lessons of those first four years (and the four years since) have affected and/or influenced his approach.

We can’t yet know the answer. But we can say, with confidence, that the answer will be massively important—and could quite possibly be the difference between a Trump administration that is not just unconstrained but enabled by the courts even as it embarks on a serious of legally dubious (if not blatantly illegal) policy initiatives and one that has its wings clipped by a Court that may well be the last line of defense.

Whatever the answer, we’ll likely find out pretty quickly—and on the emergency docket, to boot.

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Thanks again for your continuing support of “One First.” We’ll be back Monday with our regular (free) coverage of the Court. Until then, I hope you have a great weekend.

1. Indeed, it will be interesting to see how the conversation about judge-shopping and nationwide injunctions … shifts … when the shoes are on the other feet.