Dem
47
GOP
53
In addition to weighing in on the deportation-related cases, the Supreme Court this week has also used its emergency docket to give relief to the Trump administration in a manner that essentially signals the majority's stamp of approval of mass terminations of Congressionally-authorized grant programs for teacher training under the Department of Education's "new" policies. And it did so with no substantive analysis of the case whatsoever.
In its brief order, the Court's majority justified its interference by stating that the government might lose some grant money in the 3 days left before the temporary restraining order expires. Justice Ketanji Brown Jackson, in her dissent, persuasively describes the new normal for this Court: "If the emergency docket has now become a vehicle for certain defendants to obtain this Court's real-time opinion about lower court rulings on various auxiliary matters, we should announce that new policy and be prepared to shift how we think about, and address, these kinds of applications." It looks safe to say we're there.
Before we continue, however, a quick primer on these interlocutory orders and the normal stages of litigation, particularly the difference between a Temporary Restraining Order (TRO) and a Preliminary injunction (PI).
When plaintiffs seek equitable relief in a case—in other words a Court order that defendants refrain from doing something or affirmatively do something—they will typically file a motion for a PI to maintain the status quo while the case proceeds. A hearing on such a motion can be like a mini-trial because the Court has to examine the merits of the case to determine if a PI is appropriate. Only if the plaintiff can show that they are likely to succeed on the merits, and that the likelihood of harm to them is great if the PI is not granted, will the Court grant them this relief. A PI can be in place for a long time as some cases can take years to adjudicate. For that reason, if the Court agrees to a PI, the defendant can appeal, even though the rest of the case has yet to conclude.
A TRO, by contrast, is temporary and of short duration to give the Court an opportunity to review the PI motion and make a decision while keeping everything status quo ante. A motion for a TRO is also examined using the same criteria but it undergoes a somewhat less rigorous analysis since it is in place for such a short period of time. For this reason, TROs are not generally appealable, with very limited exceptions.
In the case of the teacher-training funds, on March 10 the Court granted the plaintiffs' application for a TRO, preventing the Trump administration from instituting the mass cancellations of grant programs Congress authorized. The TRO was in place for 14 days, and on March 24, the Court extended it another 14 days and set March 28 as the hearing date for the PI motion. Thus, the TRO was set to expire on April 8. The government asked the Supreme Court for an emergency stay on March 26—more than 2 weeks after the TRO was first issued and 2 days after it was extended for another 2 weeks. Despite the delay in requesting the stay, the government claimed it was an emergency that demanded Supreme Court action. They didn't claim they were right on the law or defend their actions. Instead, they said the Supreme Court needs to step in immediately because some of the grant money may be spent during the short duration of the TRO. Somehow, this emergency didn't arise until the TRO had been in place for more than 2 weeks.
And... the Supreme Court dutifully gave the White House what it wanted (albeit only for the few days that the TRO remains in place). But importantly, the Court used the stay to signal to the district court that it believes, without any briefing or argument, that the lower court got it wrong. The district court has not ruled yet on the PI motion and it will be interesting to see if its decision aligns with SCOTUS' not-so-subtle hints. Justice Jackson is correct: This is where we are now. The Court is allowing the Trump administration to skip the line and avoid any kind of thorough tests of the unprecedented actions he's taking. Instead, he gets a shortcut to a Supreme Court blessing.
And now, as we discuss above, the Court granted an administrative stay in the erroneous deportation case of Abrego Garcia, who had been ordered to be returned by midnight tonight. Moreover, in the larger deportation case, as we note, the Court sanctioned Trump's use of the Alien Enemies Act so long as the deportees are given due process. But they can only bring the case in the state where they are being detained, assuming anyone knows where that is. And it's a safe bet it'll be in a county where the federal district court judge is in the bag for Trump. Is Matthew Kaczmarek or Aileen Cannon available?
These are substantive decisions fast-tracked on the shadow docket to avoid too much scrutiny of Trump and his means and methods. And it seems clear that this relief is available to only one party, namely the Trump administration. Is it any wonder why the public has lost faith in this Supreme Court? (L)