The Court Comes to the Administration’s Rescue, Again

A clear pattern has emerged in the extended back-and-forth over the legality of many Trump-administration actions. Donald Trump or a member of his Cabinet takes a certain step—say, firing an official protected from such removal, or destroying a government agency established by Congress, or seeking to ship a group of immigrants off to a country where they may be tortured or killed. Then, a lawsuit is quickly filed seeking to block the administration. A federal district judge grants the plaintiffs’ request, typically in an order that prevents Trump from moving forward while that judge weighs the underlying issue. An appeals court backs the district court’s decision. So far, so good for the plaintiffs. Then the administration takes the case to the Supreme Court—which hastily upends the lower courts’ orders and gives Trump the go-ahead to implement his plan.

The Supreme Court exactly followed this script yesterday, when it issued an emergency ruling that could potentially allow Trump to lay off enormous numbers of federal employees. The late-afternoon order paused an injunction issued by a California federal court that had blocked the implementation of an executive order demanding “a critical transformation of the Federal bureaucracy.” (The confusing double negative—a ruling stopping a ruling stopping something from happening—is part of the pattern too.) It’s not yet clear how far the administration will get in its plans for mass firings before another court steps in and the cycle begins again. The original litigation, meanwhile, may still continue as the district court and the plaintiffs weigh how best to proceed. But the Supreme Court’s intervention is a particularly pointed example of the justices’ willingness to cut the president a break, even—or, for some of the justices, perhaps especially—if it requires tossing less exalted members of the judiciary under the bus.

The case, Trump v. American Federation of Government Employees, began as a challenge to the White House’s plans to reshape the federal government through a complicated process known as “reductions in force,” or RIFs—an effort to slash the jobs of potentially hundreds of thousands of government employees. If successful, the RIFs will be a key component of the Trump administration’s destruction of the federal government.

[Paul Rosenzweig: The inscrutable Supreme Court]

A coalition of nonprofits, local governments, and unions representing federal employees filed suit and secured a pair of emergency orders halting the process from federal District Judge Susan Illston, who ruled that the White House’s RIF plans “reach so broadly as to exceed what the President can do without Congress.” The Trump administration ran to the U.S. Court of Appeals for the Ninth Circuit, seeking a temporary pause on Illston’s order. The Ninth Circuit declined to issue one. Since May 30, when that court ruled, the orders for RIFs had been halted—until yesterday, when the Supreme Court took the administration up on its request to issue the pause (on the pause) that the Ninth Circuit rejected, thus bringing the original RIF plans back to life, at least for now. The high court does not provide a vote tally for its emergency orders; only Justice Ketanji Brown Jackson wrote a dissenting opinion.

Why exactly did a majority of the justices feel that Judge Illston’s order should be put on hold? As is so often the case with orders resulting from the Supreme Court’s emergency docket, the Court provided little guidance. The scant explanation sketched out in the order, and in Justice Sonia Sotomayor’s brief concurrence, hints that the Court is drawing a distinction between the high-level instructions on RIFs provided to government agencies by the White House—whose implementation Illston had blocked, but which the Court suggests were likely lawful—and the plans developed by individual agencies to enact those instructions, which may cross a legal line.

In one sense, the Supreme Court’s intervention may not be immediately earthshaking, because the lower courts seem to still have the opportunity to weigh the legality of what the RIFs look like in practice. “This is not the end of this case,” wrote Nick Bednar, a law professor at the University of Minnesota.

The Court’s decision is still troubling, however, for what it says about both the justices’ relationship with the lower courts and their relationship with basic facts. As Jackson wrote in dissent, Illston had combed through piles of evidence demonstrating that agencies were already following White House directives to cut their workforces well past the point where they could function as legally required. The majority breezed past this record entirely. In Jackson’s view, this was indefensible: “It is not this Court’s role to swoop in and second-guess a lower court’s factual findings,” she wrote, condemning “this Court’s demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture.”

That enthusiasm has been apparent in case after case over the past two months. The Court has blocked lower-court rulings preventing the administration from implementing its unconstitutional plan to raze birthright citizenship, shipping a group of noncitizens to South Sudan, giving DOGE access to Social Security records, illegally firing officials meant to be protected from presidential removal, stripping immigration protections from large numbers of people from Haiti and Latin America, and barring transgender service members from the military. Crucially, all of these cases arrived at the Supreme Court on the emergency docket, meaning that in none of them did the justices reach a final conclusion about whether Trump had the power to take these actions before they gave him the go-ahead to do so while litigation continued.

[Paul Rosenzweig: The Supreme Court’s inconsistency is very revealing]

What is driving this trend? One reading is that the Supreme Court’s conservative supermajority leans further to the right than lower-court judges, and is taking the opportunity to cut some slack to an administration whose approach is in line with the justices’ sympathies. However much the Court wants to understand itself as a wise and neutral arbiter, shaking this perception is difficult—particularly given that on the emergency docket, the Court rarely bothers to explain the reasoning behind its actions.

But even the Court’s political leanings can’t fully account for what’s going on. Data collected by the political scientist Adam Bonica suggest that Trump has fared poorly in the lower courts in front of judges appointed by both Democratic and Republican presidents. The liberal Supreme Court justices, meanwhile, don’t always reject the administration as a bloc. (Recall that Jackson was the only public dissent in the RIF case.) Another possibility is that district-court judges, who deal more directly in facts—and less in legal abstractions—have a harder time ignoring the truth of what Trump is actually doing. The Supreme Court, in contrast, appears inclined to take on faith the sanitized, often disingenuous version of events that the administration presents in its legal briefs.

Whatever the cause, the overall picture is of a Supreme Court casually undercutting the lower courts. Dissenting to the Court’s ruling on birthright citizenship, Jackson warned that “this Court’s complicity in the creation of a culture of disdain for lower courts” would lead to “the degradation of our rule-of-law regime.” The Trump administration, though, seems only too happy to take advantage of the Supreme Court’s help. And as far as the White House is concerned, the cost to the rule of law may be a bonus.