Pressure on SCOTUS Over Trump 'Emergency' Wins

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1:36Since President Trump returned to office, his administration has made 27 emergency requests to the Supreme Court, and the justices have granted those requests in full or in part a remarkable 27 times. times. But Trump ignored that extraordinary win-loss record after the court decried his signature tariffs, berating the justices who ruled against him as fools, lapdogs, unpatriotic, and disloyal to the Constitution. And nearly a month later, he again complained about his Supreme Court nominees not following his wishes on Monday in the Oval Office. Republicans go the opposite way. If Donald Trump appointed me, I'm going to show the world that I can be totally just, that I can be independent of Donald Trump.

2:34He's not controlling me. Despite what the president may think about how the Supreme Court is treating him, pressure is growing on the justices over all those Trump emergency wins. Joining me is Bloomberg legal reporter Zoe Tillman. Zoe, tell us about the criticism of the Supreme Court's handling of the emergency docket and, you know, President Trump's extraordinary record of wins. Right. So in the past, you know, this option of pursuing emergency relief from the justices has existed for a long time. This predates this administration. It predates the first Trump administration. In the past, there were instances where on a, you know, underscore emergency basis, issues would go up while they were still pending in lower courts because parties felt that there was this need for sort of immediate resolution of the status quo by the justices.

3:32But it was it was rare. And I think that seemed to reflect what the intent was of calling something an emergency. So during the first Trump administration, there was this uptick in instances when the government, after losing repeatedly in lower courts, would turn to the justices to say, you know, this case is still pending, but there are reasons why we're going to be irreparably harmed if you don't step in now and, you know, let things continue as we want them to while this is going forward. Under the Biden administration, it went down a bit from Trump 1, but we still saw sort of more use of the docket.

4:13I think Trump 1 really opened the door to this becoming a more commonplace part of legal strategy. And then since Trump came back to office and, you know, there's been a wave of unprecedented, novel, expansive uses of executive power that have faced a wave, a flood of lawsuits. There's been then another flood wave, whatever metaphor you want to use to describe injunctions and orders against the government. And they've been taking those up at a much higher rate again, back to the justices. Now, the criticism is that increasingly it's becoming a more commonplace part of the legal process in a way that many critics say it's not supposed to be, that you're sort of skipping, leapfrogging what's supposed to happen in the lower courts.

5:04There's supposed to be a full airing of the facts. Judges are supposed to get some time to really think about the full record, analyze the law, hand down fully reasoned decisions. And then parties can ask the Supreme Court to come in and do their own review of this. But by going to the justices early, the idea is that you're sort of short circuiting all of this and there's no longer a full airing before the justices put this sort of thumb on the scale and say, yes, you can fire all these people, even though the case isn't over yet. Or, you know, yes, you can refuse to pay out all this money or you can try to deport a lot of people, even though the case isn't over yet.

5:43So that's how we got here. One of the major criticisms is that in many of these emergency orders, the justices have given little or no explanation for their actions. And that's led district court judges and even appellate court judges to reach different outcomes from the Supreme Courts, saying there's a lack of guidance from the justices. That's right.

6:37sentences, a couple paragraphs. Sometimes they offer a reason in some summarized way, but sometimes they don't. And then the Justice Department is taking these and going back to lower courts and saying, see, we won. This means the court is going to side with us. Generally, you need to back off. And lower court judges are saying, that is not at all how this works. It is not our job to read tea leaves. That was a phrase one judge actually used, that it's really not supposed to happen that way. And it's not appropriate, judges are saying, for it to happen that way. We're not supposed to infer what the Supreme Court wants.

7:11They're supposed to give us precedent that we can clearly apply. You know, last year, there was sort of open disagreement that broke out where in another round of cases, judges were sort of not taking the approach the Justice Department wanted. And Justice Neil Gorsuch, you know, wrote openly that they're not doing what they're supposed to do. And then lower court judges pushed back and bristled at Justice Gorsuch's comments in an opinion. I mean, there's sort of this open disagreement, which is extraordinary to see. And that kind of died down a bit. And now again, there's been this uptick in courts saying they just haven't given us enough to work with.

7:49Yeah, that was extraordinary. So the TPS program, Temporary Protected Status, is designed to protect immigrants whose home countries are in crisis and let them temporarily live and work here in the United States. So explain how lawsuits challenging the administration's efforts to roll back TPS have become a flashpoint in this debate about emergency orders at the Supreme Court. So last year, the Homeland Security Secretary, Christine Noem, began rolling out announcements that they were terminating temporary protected status for a number of countries. I think it's something like 17 at the start of 2025 had TPS.

8:37And to date, I think it's 13 where Noam has announced they're terminating the status before it was supposed to expire or allowing it to expire in a way that is being contested. And the issue that challengers say is that, yes, this is a discretion that the secretary has to designate a country as so dangerous, so unstable, that its citizens are able to come to the U.S. and get authorization to work and live here on some temporary basis. But the concern is that, A, she's doing it in a way that goes far beyond the process that's supposed to happen here, that there's administrative steps that she's not following.

9:16The other argument and allegation is that whatever reasons this administration is giving is actually pretextual and that it is because these are people from parts of the world or people from ethnic backgrounds that this administration does not want in the United States and that there is a discriminatory, hostile purpose behind these cancellations that violates the rights of these migrants. And we've had some judges finding that they think the evidence does support those allegations, as well as finding that just process-wise, they've gone about this in an unlawful way. So as terminations were announced, lawsuits hit the docket.

9:58We've had lower courts, mostly, although not exclusively, siding with challengers, granting preliminary injunctions, stopping these terminations from taking effect. going up on appeal, appeals courts often affirming what the lower courts have done. But what's been sort of fascinating about these cases is there's been two times the Supreme Court has weighed in, and it was in a case involving Venezuelans. And both times they sided with the government and said, yes, you can go ahead with what you're trying to do here in terminating their status. And after both of those orders, lower courts in large part said, like, this does not apply to me.

10:36There was no reasoning here. Venezuela is a different country from the country that I'm looking at. And without the justices telling me, you know, here's the reasoning that should apply more broadly beyond the case before us, we're not going to back off. And so the issue is now back before the justices with DOJ saying, you know, this is just a pattern of lower courts defying the Supreme Court and challengers arguing, no, this is the lower courts doing their job. They're doing exactly what they're supposed to do. The administration asked the court last week, again on an emergency basis, to end temporary protected status for Haitians, as they'd asked the court about two weeks earlier to end temporary protected status for Syrians.

11:23And they made an unusual request to ask for a full court review. So we're doing this on the emergency docket, but we want you to handle this as if It was on the regular docket. Is that very unusual? It's quite unusual. Everything about this is quite unusual. And, you know, what we saw was the court, at least initially this time, saying, we are not going to immediately intervene here. There was an ask by the Justice Department to lift the lower court rulings now while the case goes forward, which would effectively put the Haitians and Syrians on the table for potential detention and deportation or, you know, force them to leave because they would lose legal status to be here unless they had some other path that they were going to pursue that was going to come through really quickly.

12:17TPS is not a path to citizenship or green cards. They can pursue those separately, but those processes take years. And the Trump administration has slowed a lot of those systems down. So assuming they don't have another path, if they lose TPS, they could be deported. They could have to leave. So justices said, this time, we're not going to take that approach. We're going to hold off here for now. But in a very unusual move, you know, they did say, yes, we will skip the rest of the proceedings in the circuit court, and we will take this up on the merits. They are going to have arguments in April.

12:53So the government got some of what it wanted here. This is certainly fast tracking it. This is not what the challengers wanted. They wanted to let the circuit courts complete their process, give fully reasoned opinions, and then if the government wanted to take this up, they could. But at a minimum, it does seem to be the court saying, we are going to give you reasons here that even if they do end up siding with the government, they're going to do it in some ways, at least, that looks more like normal process that lower courts can then turn to to say, OK, this is the precedent. This is what they're telling us to do.

13:28Coming up, two justices clash over the court shadow docket. This is Bloomberg. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the corner coffee shop. Apply for Apple Card and the Wallet app to see your credit limit offer in minutes. Subject to credit approval, Apple Card issued by Goldman Sachs Bank USA, Salt Lake City branch. Terms and more at applecard.com. Hello, hello.

14:03I'm Malcolm Gladwell, host of the podcast Smart Talks with IBM. I recently sat down with IBM's chairman and CEO, Arvind Krishna, and I asked him, how can companies use AI to its fullest potential to create smarter business? My one advice to them, pick areas you can scale. Don't pick the shiny little toys on the side. For example, if anybody has more than 10 % of what they had for customer service, 10 years ago, they're already five years behind. If anybody is not using AI to make their developers who write software 30 % more productive today with the goal of being 70 % more productive. Yeah. Wow.

14:51So we are not asking our clients to be the first experiment on it. We say, you can leverage what we did. We're happy to bring out all our learnings, including what needs to change in the process because the biggest change is not technology. It's getting people to accept that there's a different way to do things. To listen to the full conversation, visit ibm.com slash smarttalks.

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15:53Twice last year, the Supreme Court cleared the Trump administration to end protections for hundreds of thousands of Venezuelan migrants fleeing violence and instability. In the months that followed, current and former judges repeatedly called out the justices for failing to explain their reasoning. The issue is before the high court again, and this time there are signs the justices heard the criticism. They declined to immediately intervene in two other cases involving temporary protected status, this time for Haitians and Syrians. But the court did grant the administration's request to leapfrog over appellate courts and fast-track arguments next month on the merits of the fight, potentially ruling by July.

16:42I've been talking to Bloomberg legal reporter Zoe Tillman. Zoe, there was an unusual amicus brief or friend of the court brief signed by former state and federal judges that urged the justices to allow the full legal process to play out in the case involving the Syrian migrants. Do you think that influenced the justices? The order that they handed down doesn't explain, sort of in keeping with the pattern that we're talking about. It didn't explain why they decided to take the approach that they did this time. So, you know, they didn't say, we heard your complaints, and so we're going to go to the merits instead of ruling on the emergency docket.

17:23They didn't say that, you know, so we don't know what was in their heads. That said, what we know is what's happened, which is they have a record of lower courts really talking to them through opinions, saying, you need to give us more. You know, if you want us to let the government terminate TPS, you need to tell us why in a way that we can apply. So there's a record of that. And you have this friend of court brief signed by,

17:51and state judges coming to the defense of lower courts here and saying, you know, it's really not fair to accuse them of doing something wrong. You know, this is about the legitimacy of the Supreme Court more broadly, that if you want the public and the rest of the courts to take seriously and respect the work that the Supreme Court is doing, that they need to slow down and show their work. And this past year, I think because there's been this escalation of attacks coming from the president directly, coming from other officials, coming from conservative allies, really attacking sometimes judges by name who have ruled against this administration, making comments that question the integrity of what the lower courts do and the work of judges.

18:38There's been this outpouring of support coming from former judges. Occasionally, we have sitting judges speaking up, which is one of the most extraordinary. If we're going to make a list of extraordinary things here, one of the most extraordinary things that we've seen, you know, the consequences for TPS holders, you know, for them, the stakes are extremely high. Lawyers have talked about the dangers that they face if they are forced to go home. So there's on the one hand, you know, the high human stakes for the people involved here. I think also a lot of people see these types of cases as high stakes for the role the judiciary plays and the credibility and legitimacy of the work that the courts do and whether they can function as a robust check on the other branches.

19:24The challenge in the TPS case, is it based on that the Trump administration failed to follow the steps they were supposed to, which is something that the Trump administration is accused of in lawsuit after lawsuit, not following the procedures? Right. That is a big part of the cases that under the Administrative Procedure Act, the way that these terminations were carried out sort of skipped over a lot of steps, basically. And there's also a constitutional due process component to these cases in terms of just the treatment of the people who have relied on this status and the way that this affects their rights.

20:04This ties into some of the discriminatory motives that have come up as allegations in at least some of the cases. In the Haiti case, the judge in Washington who ruled against the government said that the evidence seemed likely that there was this other intent coming from Secretary Noem and the administration. You know, we know there was a record of President Trump making derogatory comments about Haitians back, I think, during the campaign. So I think this ties into, you know, is this part of a sort of broader anti-migrant stance by the administration that undermines the legal discretion that they do have to make decisions about immigration more broadly?

20:53As you point out in your story, disagreements over these emergency decisions by the Supreme Court have come up in other lawsuits during the second term. Right. You know, there have been a number of cases now where judges have pushed back on how broadly the Justice Department wants them to apply these emergency docket orders. It's come up in funding cases and the court has sort of had back and forth about, you know, what it means when it has sided with the administration during the sort of wave of doge cuts early on, how much to read into that. There was back and forth about this issue of third country deportations and the administration's ability to send people to countries that are not their home countries.

21:45So when there's been an immigration court order saying, you know, it's too dangerous to send this person to their home country, the government's ability to say, OK, well, this other country they have no connection to is willing to take them. And there was some back and forth about how judges were continuing to block the administration after the Supreme Court handed down sort of early wins for the government. So I think it's to the extent that lower courts continue to block this administration on whatever the issue is. They're not taking everything up to the justices. But I think what we've seen is a pattern of if it's about money that has to go out the door, people, officials, employees that they want to immediately fire, migrants that they want to put on planes now.

22:34Those are the types of cases where they have opted to try and take this emergency path. And so we should also point out that the emergency orders are designed to be in place while the litigation plays out. But as you know, it can take years for litigation to play out. So that means that these orders are in place for years. And sometimes that's determinative. Right. You know, I think to the extent it means, you know, a person can be fired, even if they win down the road in some lower court proceeding, you know, the harm when we talk about irreparable harm, it's been done. If someone's been deported, even if they prevail later on, it's not clear, you know, that they have to be brought back to the United States, that there are sort of consequences, real world consequences of these emergency orders, even if within the context of the judiciary, everyone says, you know, this is not a final determination of the merits.

23:36So, you know, I think courts have moved really quickly since Trump came back to office. And we've seen, I think the DPS cases are also really interesting because things moved fast after the Supreme Court sent back the Venezuela case and the lower court, even in that case, looked at the Supreme Court's emergency order the first time and said, we're going to give it a merits analysis now. And we still think that what the government is doing is unlawful. So we're going to essentially block it again. And that's why it went back up to the Supreme Court. So things are unfolding on a pretty fast basis.

24:14But it's a reminder that, you know, when something happens on an emergency docket or we get so-called shadow docket order, it doesn't always end the proceedings. And there can be these future rounds. It's just a question of how much can the toothpaste be put back in the tube weeks or months or years later. And not only is this being mentioned in lower court orders, appellate court decisions, but also two justices, Ketanji Brown-Jackson and Brett Kavanaugh, discussed their very different views on these emergency orders at a public event last week. Yes. And I mean, in writing, the liberal justices have really in very strong language denounced the extent to which the conservative majority has sided with the government in these emergency cases.

25:07And yeah, there was this sort of incredible timing of an event where Justice Kavanaugh and Justice Jackson were appearing for a talk in Washington and had some back and forth about this, where Justice Jackson said, you know, that this was creating, I think the quote was a warped kind of proceeding by acting really fast based on a preliminary assessment of the issues. You know, no one is thinking that they've given it all the thought they could when they're ruling in a matter of days or even weeks. And then Justice Kavanaugh came back and said, you know, I think there's a short memory here where folks making these critiques forget that we also intervened for the Biden administration.

25:50You know, it's not a partisan issue, but certainly numerically, this court and this conservative majority has sided with this conservative administration many times over. And these orders have been ideologically split. I think the other sort of dynamic to note here is that there are instances where what the court is intervening to do is to endorse a change that the Trump administration has made to the status quo, as opposed to acting on an emergency basis to preserve what was the status quo before whatever the challenged action was. So the question of like, is their job to, you know, put a thumb on the scale for the status quo before whatever, you know, contested action happened?

26:43Or, you know, when they do it to endorse the change, is that sort of weighing in more heavily on the merits than they're supposed to at this stage? And also, I mean, the number of emergency requests in just this beginning of the Trump administration exceeds far exceeds all those in the four years of the Biden administration. Yes. And I mean, they're on track to outpace Trump one in Trump two at this rate. I think it was, what did we have, 41 emergency requests that the Justice Department in the first Trump administration filed in the entirety of those four years. And we're at 33 in year one. So if the pace keeps up like this, that total number at the end of four years will be much higher than what it was.

27:32Not to mention there were only three emergency requests during the eight years of the Barack Obama administration and only five during the eight years of the George W. Bush administration. So exponential growth in the shadow docket. Thanks so much, Zoe. That's Bloomberg Legal Reporter Zoe Tillman. Coming up next on the Bloomberg Law Show. The Trump administration has been pushing the unitary executive theory, but now federal trial judges are using the theory against the administration in immigration cases. I'm June Grosso, and you're listening to Bloomberg. Hello, hello. I'm Malcolm Gladwell, host of the podcast Smart Talks with IBM.

28:17I recently sat down with IBM's chairman and CEO, Arvind Krishna, and I asked him, how can companies use AI to its fullest potential to create smarter business? My one advice to them, pick areas you can scale. Don't pick the shiny little toys on the side. For example? If anybody has more than 10 % of what they had for customer service 10 years ago, they're already five years behind. If anybody is not using AI to make their developers who write software 30 % more productive today, with the goal of being 70 % more productive. Yeah. Wow. So we are not asking our clients to be the first experiment on it.

29:06We say, you can leverage what we did. We're happy to bring out all our learnings, including what needs to change in the process, because the biggest change is not technology. It's getting people to accept that there's a different way to do things. To listen to the full conversation, visit ibm.com slash smarttalks.