Bonus 157: Why the Supreme Court Keeps Granting Stays to President Trump

The justices have granted at least some of the relief the Justice Department has sought in each of its last 10 applications. There are some obvious reasons why, but also some less obvious ones.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content 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 I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

For this week’s bonus issue, I wanted to look more holistically at how the Supreme Court has handled emergency applications from the Trump administration—at least so far. As regular readers of the newsletter know, the federal government has filed an unprecedented number of requests for emergency relief from the Supreme Court—a total of 19 in the first 20 weeks of the second Trump administration. For comparison, the Biden administration filed a total of 19 applications across four years; and even that was a much higher total than, say, the George W. Bush and Obama administrations—which, across two two-term presidencies (so, 16 years), filed a combined total of eight(!).

What is becoming increasingly clear is that the Trump administration is not just seeking an unprecedented number of stays from the justices, but that it is doing very well in those cases. With the two rulings last Friday afternoon in the DOGE-related cases, the Court has now granted at least some relief to the Trump administration in 10 of the 12 applications on which it has ruled—and one of the other two applications (in the Hampton Dellinger case) was ultimately dismissed as moot. (See the chart below.) What’s more, at least one of the Democratic appointees has publicly dissented from nine of those 10 grants (the tenth was Abrego Garcia, in which the Court mostly ruled against Trump).

Why, if the Trump administration is faring so poorly in the lower courts, is it doing so well in these cases? The obvious answer, of course, is to focus on the current Court’s composition. Indeed, as the chart makes pretty clear, these cases are largely dividing the Court into its “usual” ideological camps. When that happens, one side has the votes, and one doesn’t.

But my own view is that that’s too simplistic an explanation. After all, plenty of Republican-appointed lower-court judges have ruled against President Trump, including in some of these very same cases. Instead, it seems to me that Trump’s success rate in the Supreme Court, at least to this point, reflects three different—but related—phenomena that are Supreme Court-specific: the effective abandonment, at least by a majority of the justices, of traditional equities-balancing when deciding emergency applications; careful culling of cases by the Department of Justice (which has not sought emergency relief from the justices in the substantial majority of cases in which lower courts have blocked Trump policies); and the volume of applications itself—which has ratcheted up the amount of capital the Court would have to spend to rule against Trump in more than a handful of these (and other) disputes, such as the Alien Enemies Act cases.

None of these explanations is meant to condone the Court’s behavior, of course. But understanding why the Court is doing what it’s been doing may be helpful not just to those of us who are watching (and trying to understand) the Court from afar, but to lower courts and those challenging the Trump administration’s policies in thinking about how best to mitigate the (steadily increasing) risk of emergency intervention from the Supreme Court.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.