The Trump administration seems to regard “extraordinary relief” from the high court as nothing more than its due. While the Court has not granted relief each time it has been sought, the government has gotten much of what it wants in high-profile cases such as the “travel ban,” the transgender military service ban, and the asylum rule. And, as Vladeck pointed out, until last week no one on the Court had even suggested that the government was abusing these procedures.
Sotomayor’s dissent breaks the silence. But the majority, and in particular Chief Justice John Roberts, have stayed mum, suggesting to Vladeck that the Court has shifted its view of emergency motions. “That silence,” Vladeck told me in an interview, “is certainly resonating in the Solicitor General’s office”—meaning that the government may now feel secure in asking the high court to rein in judges below.
One common response to Vladeck’s statistics is that the Court’s aggressiveness has been spurred by an increase in so-called nationwide injunctions issued by district judges. “That’s way too easy,” Vladeck said. Although there has been an increase in such injunctions (it began in the Obama years), many emergency stays have been issued in cases where no nationwide injunction is at stake, or in more or less routine disputes over “discovery,” the information the government must provide when it is sued. To Vladeck, the real change is that the new conservative majority is willing to in essence decide the cases before they are briefed or argued—to predict that the government will win when the case finally reaches them, and thus should have its way in the interim.
In the article, Vladeck points out that one of the factors a court must decide is whether either party will suffer “irreparable injury”—either because an injunction is granted, harming the defendants, or denied, harming the plaintiffs. Thus, in a suit against the government, courts must balance the damage to the government caused by the delay of a possibly lawful policy against the harm to plaintiffs caused by being subjected to a possibly unlawful action. Under Trump, the government seems to be suffering all the harm. Vladeck argued that the Court should explain this shift. “If what’s going on in these cases is that the majority is no longer interested in considering the harm that these policies are—or could be—inflicting while they are in force, it would behoove them to say so,” he told me.
The government’s use of these procedures smacks of entitlement, of a sense that Republicans went to great trouble to tilt the Court in their favor and should now reap their reward. Similarly, some conservatives have muttered that lower courts are wandering out of their lanes, with one Trump defender attacking anti-administration rulings as “the judicial resistance.” Indeed, in a surly dissent in the census case last June, Justice Clarence Thomas branded District Judge Jesse Furman, who had ruled against the government at trial, “a judge predisposed to distrust” the administration. Thomas also claimed Furman had “create[d] an eye-catching conspiracy web” out of unrelated facts. As judicial conduct used to be measured, it was a shocking breach of protocol. Yet Thomas’s opinion was joined by Trump’s two appointees, Neil Gorsuch and Brett Kavanaugh.
Which brings us back to my initial question. What is the Supreme Court today, in 2019? I fear it has taken on the role of enforcing Trump’s will against fellow judges.