Bonus 186: Me on the OT2024 Trump Cases

In a new paper, I argue that the justices' behavior in Trump-related emergency applications can best be viewed as protecting the Court's supremacy, as such—and that such an approach is deeply myopic.

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, I put much of the weekly bonus issue 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:

The Court made news late yesterday with a deeply intriguing order requesting additional briefing in Trump v. Illinois—in which the Trump administration is asking the justices to clear the way for the deployment of federalized National Guard troops in and around Chicago. As I suggested on social media, I think the order is a very promising sign for Illinois—for reasons I’m planning to elaborate upon in next Monday’s regular installment of the newsletter. (The requested briefs won’t all be filed until November 17, so there’s some time to run this to ground.)

Instead, I wanted to use this week’s bonus issue to introduce a new, longer-form paper of mine—an essay solicited by The Supreme Court Review (a peer-reviewed journal run out of the University of Chicago Law School) on the relationship between the Trump administration and the Roberts Court during the October 2024 Term. A draft of the piece, tentatively titled “The Supreme Court’s (Self-Defeating) Supremacy,” is available via SSRN—where folks can (and, I hope, will!) download it and read it for themselves. Here’s the abstract:

This essay, prepared for the 2025 volume of The Supreme Court Review, seeks to provide a holistic account of the Supreme Court’s behavior on emergency applications relating to the Trump administration during its October 2024 Term.

As it demonstrates, the justices in those cases not only flouted the traditional standards for emergency relief; they exhibited repeated and sustained disrespect for both lower courts and Congress, enabling the executive branch to act in defiance of countless statutory restrictions; of settled constitutional understandings; and even of coercive district court mandates, all with dramatic (and deleterious) real-world consequences. As the Alien Enemies Act cases illustrate, the takeaway is not that the Court always ruled for President Trump; it’s that it pushed back only when its mandates were on the line. The upshot is an attempt by the Supreme Court to preserve its supremacy, as such.

But such an approach, the essay concludes, is likely to be self-defeating. In the short term, it will encourage the executive branch to take ever-more-aggressive actions against both the people and the lower courts. And in the long term, it will not just further weaken Congress and the lower courts; it will further erode public confidence in the judiciary as an institution. Together, the increased power and momentum of the executive and the decreased credibility of (and respect for) the courts will make it that much harder for the Supreme Court to wield the supremacy it’s protecting, even when it wants to.

Obviously, I think (and hope) that the paper speaks for itself. But below the fold, I thought it would be interesting (and, if nothing else, cathartic for me) to reflect a bit on how I came to the conclusions the essay reaches; the broader challenges of writing about cases in which the Court isn’t writing itself; and the (in my view, critical) relationship between this kind of conventional legal scholarship and more public-facing work like my posts for this newsletter.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (no later than) next Monday. For those who are, please read on.