As she has done several times recently, liberal Justice Elena Kagan last week sounded the alarm after another bold emergency action by the U.S. Supreme Court’s conservative majority again let President Donald Trump carry out one of his policies without taking the usual time or deliberation to review its legality.
The court, which has a 6-3 conservative majority, allowed Trump to withhold $4 billion in foreign aid despite a judge’s decision that he cannot simply not spend funds appropriated by Congress. The emergency docket, with its scant briefing and lack of oral arguments, Kagan wrote in a dissent, was not appropriate for yet another high-stakes decision from the top U.S. judicial body given the “uncharted territory” of the dispute.
Typically, Kagan wrote, “we will decide cases of far less import with far more process and reflection.” When the justices start their new nine-month term on Monday, they will assess their regular cases over months before issuing definitive rulings.
Since Trump returned to office on January 20, the court has acted in 23 cases on an emergency basis involving his policies, siding with him fully or partially 21 times, with one case declared moot.
In doing so, the court has expanded how it uses its emergency power, following at least six different legal paths to side with Trump, usually in decisions powered by the conservative justices, a Reuters analysis has found.
While the court has faced criticism for issuing its decisions on its emergency docket — also called the “shadow” or “interim” docket — often with little or no explanation, in 14 of the 21 cases backing Trump it has presented at least some rationale, the Reuters analysis showed.
These decisions have let Trump’s aggressive and sometimes novel uses of executive authority proceed largely unhindered before their legality is fully determined, increasing his power in ways that critics have said undermines Congress and the various federal judges who have ruled against him.
Here are six paths taken by the court this year in deciding Trump-related emergency docket cases: — It identified specific errors by federal judges in four cases. For instance, it said that several nonprofit groups that had challenged the administration’s firing of thousands of federal probationary employees lacked the legal standing to sue.
— It paused two lower court decisions against Trump by applying the traditional legal test for deciding whether a challenged policy should be blocked while litigation plays out. This test often hinges on a prediction of which side is likely to prevail on the legal merits. One of those cases allowed Trump to pursue mass federal layoffs.
— It signaled in cases involving Trump’s firing of Democratic officials from federal agencies that it potentially will overturn an existing legal precedent.
— It twice issued opinions that lawsuits challenging a Trump policy were brought in the wrong lower court. One of those cases was a challenge to Trump’s use of a 1798 law, historically used only in wartime, to carry out deportations.
— It cited its own previous emergency decisions as binding on lower courts, for instance one in which the justices allowed Trump’s cuts to National Institutes of Health grants for research related to racial minorities or LGBT people.
— And in one instance — the administration’s challenge to judicial rulings against his bid to restrict birthright citizenship — it issued a ruling after hearing oral arguments.
The actions by the justices have expanded the emergency docket’s “effective power without the court formally acknowledging it,” Bradley University law professor Taraleigh Davis said.