Politically charged 'shadow docket' cases taking over Supreme Court during its busiest time
President Donald Trump is approaching the end of the first 100 days of his second term. The milestone is considered significant for assessing any new occupant of the White House, but for the U.S. Supreme Court, the 100-day mark holds no special resonance. The court is still in the early days of a new chapter in what has been a complicated relationship.
The court has received numerous emergency applications from the new administration since Trump took office in January, leading to what some call the “shadow docket” to overshadow the court’s regular course of business at pretty much the busiest time of its term.
In April, the justices are hearing arguments in their last regularly scheduled cases of the merits docket, while furiously working on opinions—and issuing a few—for cases argued in its six earlier monthly “sittings” since last October. They can see the end of the term on the horizon, in late June or early July. But what the justices prefer to call the emergency docket seems to be taking over their bandwidth.
Recent emergency docket applications from the Trump administration cover such highly charged issues as immigration enforcement, federal government cuts in aid or grants, dismissals of federal employees, removal of independent agency officials and birthright citizenship.
The new administration has won some relief and lost some, and legal observers for months have been debating whether the court is being overly cautious and tentative in its approach to Trump-related cases.
“I think we just don’t know yet where we are,” says Will Baude, a University of Chicago law professor who co-hosts the Divided Argument podcast about the court. “We don’t know yet how much of a fight the court is willing to pick with President Trump.”
Maryland man’s removal from country is major flashpoint
Among the most contentious emergency cases to reach the court involve immigration matters. On April 10, the court largely left intact the order of a federal district judge that the federal government should “facilitate” the return of Kilmar Armando Abrego Garcia, the 29-year-old Maryland man the government has acknowledged was mistakenly included in a sweep of undocumented immigrants removed from the United States and sent to a prison in El Salvador.
The Supreme Court, without recorded dissent, said the district judge’s order “properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The court did order the district judge to clarify parts of her directive “with due regard for the deference owed to the executive branch in the conduct of foreign affairs.”
That gave the Trump administration some room to claim a partial victory, which led to the April 14 session in the Oval Office when several top Trump administration officials and the president of El Salvador claimed they were powerless to return Abrego Garcia, who remains imprisoned there.
“I think there are some people in the Trump administration who are lawyers who believe in the rule of law who want to win this case on legal grounds, and there are some people in the administration who would probably be happy to see a constitutional crisis in which law doesn’t matter anymore, says Baude, who is generally conservative but not a Trump supporter. (He co-wrote a well-regarded, though ultimately unpersuasive, law review article that Trump’s role in the Jan. 6 assault on the Capitol should disqualify him from the presidency under the 14th Amendment’s insurrection clause.)
“We just don’t know yet which of those people has the upper hand,” he says.
Edward Whelan, a longtime Washington legal hand who served in a senior Department of Justice role under President George W. Bush, has been critical of the Trump administration’s response to rulings in lower courts and the Supreme Court.
“I don’t think it’s too late for the White House or the administration to shape up, but when the Supreme Court issues a nine to nothing ruling against the administration in the Abrego Garcia case and, next thing you know, Stephen Miller is in the Oval Office grossly misrepresenting the opinion as a nine to nothing victory, anyone looking it has to ask … how can we trust this White House?”
Robert Luther III, a professor at Antonin Scalia Law School at George Mason University outside Washington and a former associate White House counsel in Trump’s first term, says, “While critics may not like the president’s decisions, they understand that nearly all of them have been comfortably within the boundaries of executive authority—perhaps not frequently maximized—but always there for the taking if the politics allow it.”
Alien Enemies Act and birthright citizenship cases draw attention
On another major immigration matter, the Supreme Court has dealt twice already with Trump’s effort to invoke the 1798 Alien Enemies Act to remove Venezuelan immigrants detained in the United States to the El Salvador prison. On April 7, the court declined to reach some of the issues raised by the detainees (over the dissent of four justices) but unanimously held that the plaintiffs and others detained under the law are entitled to notice and an opportunity to challenge their removal.
Last weekend, the court temporarily barred the Trump administration from removing a proposed class of Venezuelans detained in Texas pending further proceedings. The late-night order came amid news reports that the administration was preparing to fly the detainees to El Salvador under the Alien Enemies Act.
Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas, said that “literally in the middle of the night” the court had “issued unprecedented and legally questionable relief without giving the lower courts a chance to rule,” amid other concerns.
Stephen Vladeck, a Georgetown University law professor and keen observer of the emergency docket, called the court’s order in the early hours of April 19 “a massively important—and revealing—intervention.”
The court didn’t wait for a federal appeals court to rule, didn’t cite any procedural technicalities, and “seemed to not be content with relying upon representations by the government’s lawyers,” Vladeck wrote on his One First blog on Substack.
The court’s quick intervention “strikes me as … a sign that a majority of the justices have lost their patience with the procedural games being played by the Trump administration, at least in the Alien Enemy Act context,” Vladeck wrote.
The court also recently set a case from its emergency docket for oral arguments on May 15, which is about two weeks after the last merits arguments of the term.
In Trump v. CASA Inc. and two related cases, the underlying challenges are to a Trump executive order that aims to rescind birthright citizenship for children of undocumented immigrants. The Trump administration asked the Supreme Court for emergency relief from adverse lower-court actions by seeking what it described as a “modest request”—asking the court to restrict the scope of the universal injunctions to the parties who sued and not block the president’s executive order for everyone in the country who might be subject to it.
Baude says the posture of this case is similar to one the court handled during President Joe Biden’s administration, when in 2022, the court blocked a federal vaccine mandate applying to much of the nation’s workforce. The birthright citizenship case could lead to a preliminary ruling on the merits of that issue, or one on universal injunctions, or something else.
“We just do not know why the court did this,” Baude wrote on the Divided Argument blog, but he notes that the justices had set a far more relaxed briefing schedule in this matter than in most other emergency docket cases it has been dealing with.
A ‘four-year cycle’ of uncertainty
Feelings are strong as the court deals with these and other pending Trump-related matters. On CNN’s website on April 15, the day after the Oval Office session focused on the Abrego Garcia case, Joan Biskupic, the news outlet’s chief Supreme Court analyst, wrote that Chief Justice John Roberts “has been outmatched by President Trump” in that fight.
The headline for her story was this: “Analysis: Trump again makes John Roberts and the court look weak.”
But Harvard Law School Professor Jack Goldsmith observes on his Executive Functions blog that “The Supreme Court is not cowering before Trump on the shadow docket.”
“It is still very early in the Supreme Court’s engagement with the Trump administration” Goldsmith wrote, but recent emergency orders “do not support the view that the court is avoiding a showdown with the president.”
Baude says he wonders whether the nation is in for a “four-year cycle” of Trump-related legal clashes and uncertainty.
“It might be that the Trump administration is going to kind of settle who’s in charge sooner rather than later and things will be a little less chaotic,” he says. “But I just don’t think [that will happen] right now. I don’t think we’ve ever seen anything quite like this.”
See also:
‘The Shadow Docket’ shines light on an increasingly uncommunicative Supreme Court
The Supreme Court’s ‘shadow docket’ is drawing increasing scrutiny
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