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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