One of the many unique features of the first 100 days of the second Trump administration has been how involved the Supreme Court has already been—with nine rulings on emergency applications either from the federal government or in cases seeking relief against it. (Across the 16 years of the George W. Bush and Obama administrations, the federal government sought emergency relief from the Supreme Court a total of eight times; we are already up to 11 such requests from the current administration).
That is enough of a dataset from which we can at least begin to try extrapolating broader themes. And one of those themes is a concerted effort on the justices’ part to preserve a meaningful judicial role in checking the executive branch—even in decisions in which the Trump administration may be winning modest procedural victories. What’s more, as the Trump administration has ratcheted up its behavior, the Court has responded in kind—increasingly asserting itself in standing up for the power of the federal courts, one way or the other, to eventually rule on the merits of each of Trump’s allegedly unlawful actions. It may not be everything many who care about checks and balances would have wanted from the Supreme Court, but it has been a striking amount of pushback from a Court that has a majority ideologically sympathetic to the administration.
Considering the decisions as a series, the story of the Trump cases to date can be loosely analogized to the Supreme Court’s iterative response to the Guantánamo cases during the Bush and Obama administrations. In Rasul v. Bush (2004), the Court tentatively asserted a role for federal judiciary—holding that, at least as a matter of statute, the federal courts could hear habeas petitions filed by non-citizens detained as “enemy combatants” at Guantánamo. In the face of mounting reports of torture, other detainee abuses, and efforts by the Bush administration to frustrate judicial review, the justices responded in Hamdan v. Rumsfeld (2006) by not only invalidating the first iteration of military commissions, but by holding that “Common Article 3” of the Geneva Conventions, which guarantees humane treatment to all wartime detainees, applied to the conflict between the United States and al Qaeda. And when Congress and the President together attempted to entirely cut off judicial review in the Military Commissions Act of 2006, the Court responded in Boumediene v. Bush (2008) by holding that the Constitution required meaningful judicial review in Guantánamo habeas cases—only the second time in its history that the Court struck down a jurisdiction-stripping statute.
One can tell a loosely parallel story about the Court’s interventions since January 20th. Consider the cases involving the Alien Enemies Act of 1798 (AEA) and the wrongful removal of Kilmar Armando Abrego Garcia. On April 7, the Court issued a bit of a split decision in Trump v. J.G.G., holding that detainees in the United States have to use habeas petitions to try to challenge their potential removal under the AEA, but that they are entitled to notice and a meaningful opportunity to bring such claims preceding removal. The first part of that ruling was a small but significant win for Trump, but the second part was a seismic reaffirmation of a meaningful judicial role. Later that week, in Abrego Garcia, the Court moved a bit more aggressively—holding, without any dissent, that federal courts could indeed order the government to “facilitate” the release of individuals who have been wrongfully transferred to another country, so long as judges took foreign policy concerns into account. And amidst mounting evidence that the Trump administration was trying to resist both judgments, the Court stepped back in just after midnight on April 19—blocking, at least on a temporary basis, the removal of any more AEA detainees from the Northern District of Texas.
Even away from the immigration context, the Court’s rulings on emergency applications have gone out of their way to preserve a meaningful judicial role. The teacher training grants ruling, for instance, only channels lawsuits challenging certain grant cutoffs into the Court of Federal Claims; it does nothing to make those claims more difficult to prove on the merits. The probationary employees ruling likewise sided with Trump on incredibly narrow procedural grounds (that the organizational plaintiffs who had formed the basis for the preliminary injunction lacked standing)—leaving open the possibility that federal courts would ultimately conclude that the challenged firings were, in fact, unlawful.
The Court is thus not only marking out its terrain, but is also sending a message to the federal judiciary to stay true to the functions of judicial review in policing illegality.
But just as the Guantánamo cases didn’t end with the Boumediene ruling in 2008, so, too, the Trump cases are not going to end with these tentative but emphatic assertions of judicial power. The question now becomes what the courts (and the Supreme Court, specifically) are going to do with that power—especially whether they’re going to settle, one way or the other, the critical merits questions undergirding each of these disputes.
And here, the lesson of the Guantánamo cases is more of a mixed bag. Indeed, 17 years after Boumediene, the Supreme Court has not conducted plenary review of a single additional Guantánamo case—even though a number of critical constitutional questions about the detentions (like, “does the Due Process Clause apply?”) and the military commissions (like, “can they constitutionally try offenses that aren’t international war crimes or that pre-dated 9/11”) remain unanswered. The Court apparently was content, having asserted judicial power in Rasul, Hamdan, and Boumediene, to leave everything else unsettled. Maybe part of that reflected more faith that the Obama administration would treat the detainees humanely (where the administration largely succeeded) and would otherwise try to make the Guantánamo cases go away (where it failed). Maybe it also reflected what Linda Greenhouse called “Gitmo fatigue.” But whatever the reason, the behavior reflected what I dubbed the “passive-aggressive virtues”—“in which the Court as an institution gives the appearance of standing on the sidelines, even as it continually reminds the relevant players of the role that it can—and, if provoked, stands ready to—play.”
It should not take much to persuade you that neither we nor the Court can afford for history to repeat itself this time around. Every day that goes by without judicial rulings on the substantive illegality of what the Trump administration is doing, that illegality is going to continue or expand. Every inch of wiggle room that the courts give to the Trump administration, it’s going to take a hundred yards. And unlike in the early 2010s, when Congress could be trusted to (and did) step in with substantive legislation to address at least some of the open questions and meaningful oversight to rein in executive branch abuses, there is no reason to think that Congress is going to do anything to help defuse the escalating confrontations between the executive branch and the judiciary in these cases.
In that respect, 100 days into the second Trump administration, we find ourselves at what, in retrospect, may come to be a critical inflection point. To date, the federal courts in their entirety have done remarkable work to try to stem the flood of unlawful behavior by the executive branch, and the Supreme Court has (for now) successfully navigated a tightrope—between unnecessarily provoking a confrontation with the executive branch and, as so many other institutions already have, simply bending a knee.
But one need only look at each day’s headlines to see that this center cannot (and will not) hold. Judicial power is not an end unto itself; it is a means for vindicating the rule of law. We can be grateful at how skillfully the courts, and even the Supreme Court, have used that power to those ends over the last 14+ weeks, but the real question is what happens in the next 100 days.
