The Washington PostDemocracy Dies in Darkness

The Supreme Court’s ‘shadow docket’ helped Trump 28 times. Biden is 0 for 1.

“Emergency relief” may play out differently for the current administration, the justices’ recent ruling on “Remain in Mexico” suggests.

Jose Luis Romero, his wife, Karol Arriata, and their two sons arrive in Nueva Laredo, Mexico, in July 2019. The family, from Venezuela, were the first returned to Mexico under a Trump administration program that forces asylum seekers to await the outcome of their claims south of the border. (Kevin Sieff/The Washington Post)
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A quiet but undeniable trend during the Trump administration was the dramatic rise in the federal government’s applications to the Supreme Court for what lawyers call “emergency relief.” On 41 occasions, the Trump Justice Department asked the court to put on hold an adverse lower-court ruling for the duration of the government’s appeal. In 28 of those cases, the Supreme Court granted the relief, at least in part. But on Tuesday, the court refused the Biden administration’s very first request for such relief — declining to freeze a district court injunction that requires the administration to restart the shuttered “Remain in Mexico” program. The Trump-era program, which lower courts struck down, allows U.S. officials to return non-Mexican asylum seekers to Mexico, from which they entered the United States, while their claims are adjudicated in U.S. immigration courts. Even though the Biden Justice Department had explained in detail how the lower court’s ruling interfered not only with the president’s broad discretion over immigration policy but also with foreign relations with Mexico — just as the department had in Trump administration immigration cases — the Supreme Court denied the relief.

In so ruling, the court has sent a clear signal to President Biden that he may not expect the same deference accorded to his predecessor Donald Trump when it comes to “emergencies.”

The lower-court decisions for which the previous administration sought relief ran the gamut. They included orders requiring that Secretary of Commerce Wilbur Ross sit for a deposition as part of census-related litigation; freezing the construction of Trump’s border wall; blocking controversial changes to federal immigration policy on the ground they exceeded the president’s statutory authority; and blocking Attorney General William P. Barr’s efforts to reinstitute the federal death penalty. The 41 applications dwarfed the total from the two previous administrations, both of which spanned two terms. From 2001 to 2017, the Justice Department sought emergency relief only eight times, across the very different presidencies of George W. Bush and Barack Obama.

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Repeatedly throughout the Trump administration, the Supreme Court acquiesced, denying the government’s request outright (without any room to pursue the matter further) only four times. Most of the 28 grants of relief came over dissents from at least one — and sometimes all four — of the progressive justices. Although almost none of the court’s rulings were accompanied by any analysis, the government’s briefs requesting the relief generally cited the irreparable harm the federal government suffers whenever one of its policies is blocked by a court, and in immigration cases specifically, the deference to which the president is entitled given both the border security and foreign relations implications. In other words, the government argued, quite aggressively, that lower courts were running amok, and that previously unusual emergency relief was regularly necessary so that these policies could remain in effect until and unless a majority of the Supreme Court agreed with their lower-court colleagues.

For better or worse, these stays had the effect of allowing policies that no court ever actually upheld to remain in place for years. In some cases, the government eventually dropped the policy. In others, the appeals took so long that by the time they reached the Supreme Court, Biden had come to office and dropped (or at least attempted to drop) the disputes. And the court responded in kind during its most recent term, dumping from its docket cases it had previously agreed to hear on the border wall, the “Remain in Mexico” asylum processing rule, and the Medicaid work requirements, among others. Thus, Trump repeatedly won these cases simply by not losing them — with the justices increasingly using these emergency procedural orders to quietly but profoundly affect substantive policy.

There have been plenty of criticisms of the uptick in these summaries, unsigned and generally unexplained rulings — what University of Chicago law professor Will Baude dubbed the Supreme Court’s “shadow docket.” Perhaps foremost among the critiques is the lack of transparency. Unlike the lengthy signed opinions that the court hands down in usual cases, these orders are often accompanied by an abbreviated briefing, no oral argument and little (if any) explanation from the court about why it ruled the way it did, let alone which justices joined in the ruling. Among other things, the lack of guidance makes it hard to know which of the Trump administration’s arguments held purchase, and whether the court was showing special solicitude to the federal government in general, or to Trump specifically. As I warned two years ago in a Harvard Law Review essay, through these rulings, the court “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time — perhaps depending upon the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending upon the political or ideological valence of the particular federal government policy at issue.”

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Against that backdrop, the court’s refusal to grant the Biden administration’s first request for an emergency stay is more than a little telling. Only the three Democratic appointees to the court publicly dissented from the ruling that forces the restarting of the “Remain in Mexico” program, officially known as the Migrant Protection Protocols. The unnamed justices in the majority offered one hard-to-parse sentence of analysis, citing last year’s ruling in the DACA case for the proposition that the government had “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” In English, the court suggested that the government had not dotted the i’s and crossed the t’s when it rescinded the controversial Trump policy — that it had to go through a more detailed and procedure-laden process to get rid of a program that multiple lower courts had already invalidated. In the DACA case, the justices had left the “dreamers” program in place using similar reasoning.

There is a lot to be said about that claim — and whether the DACA ruling really establishes that the Biden administration had to do more to justify ending the “Remain in Mexico” program. But what is clear is that a court that repeatedly used procedural shortcuts to enable Trump’s immigration policies has sent a very loud message about its unwillingness to similarly defer to Biden. That is, of course, the court’s prerogative. But without providing more than one sentence of explanation, orders like Tuesday’s only lend credence to charges that the court is using — and abusing — the shadow docket not to defer to the executive branch as an institutional litigant in general, but to reach out and decide the merits of these disputes long before the appeals would otherwise reach it.

If the justices’ views of the merits are the conclusive consideration, then it’s hardly a surprise that Trump fared better with this court than Biden could ever hope to. But unless the court is going to fundamentally change its role in our legal system — one in which, the justices like to say, their role is one of “review, not first view” — then the question becomes why some cases justify these premature merits rulings when others don’t. After all, as Justice Sonia Sotomayor warned last year, “this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect.”

Perhaps there’s a good defense of this disparity. But if Tuesday’s cryptic order is any measure, it’s not coming from the court.