Justice Jackson warns the Supreme Court is manipulating the rules to benefit Trump

On Friday, the Supreme Court handed down a brief order permitting the Department of Government Efficiency, the enigmatic White House entity that billionaire Elon Musk previously ran, to access a wide range of sensitive information kept by the Social Security Administration — including many individuals’ bank account numbers and medical records. All three of the Court’s Democrats dissented from the Court’s order in Social Security Administration v. AFSCME. Realistically, it was always likely that the Trump administration would eventually prevail in this case. As Solicitor General D. John Sauer argues in the administration’s brief, the plaintiffs in AFSCME “do not contend that their information has been shared with parties outside the government.” Rather, this case boils down to whether the courts can second-guess the executive branch’s decisions about which government employees may see data that is already held by the government. These sorts of internal management decisions typically are not subject to judicial review. Yet, while the result in AFSCME isn’t surprising, the case reveals a schism within the Court — and it highlights how the Trump administration has managed to successfully circumvent normal court procedures to quickly get their grievances before a largely sympathetic Supreme Court. Justice Ketanji Brown Jackson’s dissenting opinion primarily focuses on her concerns over the rapidity with which the Court hears Trump cases, and she argues that her Republican colleagues appear to have abandoned an important limit on the Court’s authority (or, at least, that they’ve done so when the Trump administration asks them to prematurely get involved with a case). The AFSCME case arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the Court decides on an unusually tight schedule, without full briefing or oral argument. Prior to the first Trump administration, the Court rarely granted requests for shadow docket relief — indeed, lawyers were so discouraged from seeking shadow docket decisions that both the Bush and Obama administrations only requested it about once every other year. That changed once President Donald Trump took office. Now, Trump’s lawyers routinely approach the justices after a lower court issues a decision constraining its actions, and the justices frequently grant Trump’s administration the relief it seeks — often over the dissent of the Court’s Democratic minority. But there are supposed to be rules governing when the Supreme Court may allow a litigant to bypass the normal appeals process and seek an immediate decision blocking a lower court’s order. Among other things, as Jackson writes in her dissent, the government is supposed to show “that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order” before it can obtain a Supreme Court decision blocking that order. Jackson is becoming increasingly vocal about her belief that the Court should return to its prior shadow docket policy. She argues, in both her AFSCME dissent and in a similar dissent she handed down a week earlier, that her Republican colleagues have abandoned this “irreparable harm” requirement. Moreover, as she lays out in her previous dissenting opinion in Noem v. Doe, the Court took a much narrower view of its authority under the shadow docket when the Biden administration sought relief. Moreover, the evidence laid out in Jackson’s opinions suggests that her Court is applying one set of shadow docket rules to Democratic administrations and another, more favorable set of rules, to Republicans. How the shadow docket is supposed to work Prior to the first Trump administration, when a lower court ruled against someone, its order would typically remain in effect while the case was being appealed. It was possible to persuade an appeals court to suspend this order while the appeals proceeded, but appeals courts were not supposed to do so except in rare circumstances. As the Supreme Court explained in Nken v. Holder (2009), it is not enough for a party that lost in a lower court to show that it is likely to prevail on appeal when it asks a higher court to temporarily block that lower court’s decision. That party must also show that it “will be irreparably injured absent a stay.” Additionally, Nken instructs higher courts to consider whether temporarily blocking the lower court order will “substantially injure the other parties interested in the proceeding” or harm “the public interest.” One reason for this “irreparably injured” requirement is that appeals courts are typically far less familiar with the details of a case than the trial court that initially decided it, especially when a party seeks emergency relief on something like the Supreme Court’s shadow docket. So, if appeals courts are too eager to block lower court decisions before they fully consider the case on appeal, they are likely to hand down many wrongly decided orders. That said, Nken recognized that it is unfair to make a litigant wait for a higher court to step in if they need immediate, time-sensitive relief to prevent them from being injured in a way that cannot be fixed by a later court decision. As Jackson writes in her Doe dissent, appeals courts are supposed to ask “whether the applicant can be made to wait until the conclusion of the litigation to vindicate their purported legal rights, or whether irreparable harm will befall the applicant in the interim such that the court must act early to stave off that damage.” But the Supreme Court’s shadow docket orders rarely even mention this irreparable harm requirement, and even when they do mention it, they typically don’t explain how the Court analyzed this question. The Court’s decision in Doe, which allowed Trump to strip half-a-million immigrants of their ability to live in the United States, does not mention Nken at all. The order in AFSCME quotes the Nken standard, but it does not explain why the Republican justices who joined that order believe that this standard was met. In both cases, Jackson argues — without any rebuttal from the majority — that the Trump administration failed to show irreparable harm. In the Doe case, she points out that the administration “does not identify any specific national-security threat or foreign-policy problem that will result” if the immigrants targeted by Trump are allowed to remain in the country for a few months longer while appeals courts fully consider the issues in that case. In the AFSCME case, it is even clearer that there is no irreparable harm. The trial court in this case found that the government “never made clear why … the DOGE Team requires unbridled access to the [personally identifiable information] of countless Americans in order to effectuate [its] responsibilities.” And when the judge asked the Trump administration to explain why DOGE needed this information right away, the government chose instead to “stand on the record in its current form.” The Trump administration’s brief to the justices in the AFSCME case devotes only a single paragraph to the question of irreparable harm, and that paragraph also doesn’t explain what harm will result if the lower court’s decision is not stayed. Instead, it complains that the lower court’s order “impinges on the President’s broad authority to direct the federal workforce, to oversee government information systems, and to require agencies to identify fraud, waste, and abuse.” So the Trump administration, for whatever reason, chose not to even make an argument that there is irreparable harm when it brought the AFSCME case to the justices. Nevertheless, at least five of the Court’s Republicans voted to block the lower court’s order. (In shadow docket cases, the Court typically does not name which justices voted with the majority. So it is possible that one of the Court’s six Republicans disagreed with the Court’s order but chose not to make that disagreement public.) The Court did not behave this way when a Democrat was in the White House Some justices have implicitly argued that Nken should be overruled — or, at least, that it should be modified to permit shadow docket relief in some cases where there is no irreparable harm. Concurring in Labrador v. Poe (2024), Justice Brett Kavanaugh claimed that, in many shadow docket cases, “this Court has little choice but to decide the emergency application by assessing likelihood of success on the merits.” Justice Amy Coney Barrett joined that opinion. So Kavanaugh and Barrett, at least, have explicitly stated that there are some cases where shadow docket relief will be granted solely based on which party is likely to prevail once the case is fully litigated. But, if you look at the Court’s past behavior, it seems that the main factor determining whether Nken should be abandoned is whether the party seeking shadow docket relief is a Democrat or a Republican. In her Doe dissent, Jackson flags several cases where her Court “denied similar stay requests from federal agencies.” The primary difference between these cases and the Doe and AFSCME cases appears to be that Joe Biden was president when the Court denied these stays. In Biden v. Texas (2022), for example, the Supreme Court ultimately ruled that a Trump-appointed district judge was wrong when he ordered the Biden administration to reinstate a Trump immigration policy that required many asylum-seekers to remain on the Mexican side of the US-Mexico border while awaiting a hearing. But it did so after leaving that Trump judge’s order in place for more than 10 months. Similarly, in United States v. Texas (2023) the Supreme Court ultimately concluded that a Trump judge didn’t even have jurisdiction to hear a case, where the judge cut off the Biden administration’s authority to set enforcement priorities for Immigrations and Customs Enforcement (ICE). But the Court left that judge’s order in place for nearly an entire year while the case was pending on appeal. Maybe there is a nonpartisan explanation for why the Court treated Biden differently than Trump. Perhaps there were legally sound, politically neutral arguments for why Nken shouldn’t apply in Doe or AFSCME. Or maybe the Republican justices have a good argument for why irreparable harm does exist in those cases — even though the Trump administration didn’t even bother to argue that it exists in the AFSCME case. But, if such an explanation exists, the Republican justices did not explain what it is. Instead, they’ve chosen to sit silently while Jackson levies some very serious charges against them — all while presenting evidence that strongly suggests her colleagues are rooting their shadow docket decisions in partisanship and not the law.