AYESHA RASCOE, HOST:
The Supreme Court's new term began this month after not too much of a summer vacation. Between the beginning of their break at the end of June and their October return, the nine justices granted stays on lower court cases about whether President Trump can fire federal commissioners about canceling health research grants and foreign aid funding, about immigration enforcement and the Voting Rights Act. The high court did this entirely without writing opinions. And without explanations for those decisions, lower courts have been left unsure how to proceed. Now cases surrounding Trump's deployment of troops to different cities are adding to the uncertainty. William Eskridge is a professor at Yale Law School, and he joins us now. Good morning.
WILLIAM ESKRIDGE: Thank you very much.
RASCOE: We're talking about what's called the emergency or shadow docket. How did that work before President Trump?
ESKRIDGE: Well, the Supreme Court has long had an emergency docket for applications typically to stay lower court proceedings. And before the current Trump administration, the shadow docket was used mainly for death penalty requests and increasingly, starting with the Obama, Biden and Trump administrations earlier, for actions by lower courts blocking presidential initiatives and other executive actions. But in the last six months, the shadow docket exploded at a volume it had never seen before.
RASCOE: What impact have these emergency decisions made on the lower courts and how they operate?
ESKRIDGE: Well, most of the lower court decisions pausing Trump administration initiatives have not been affected. On the other hand, there have been at least 31 grants of emergency relief in these cases, which is a staggering number historically.
RASCOE: And when you say emergency relief, you mean allowing the president to continue doing what he was doing?
ESKRIDGE: Correct. Emergency relief means staying lower court injunctions.
RASCOE: Lots of lower court judges have been speaking out about the use of the emergency docket. What are their concerns?
ESKRIDGE: The lower court concerns are several-fold. The lower courts actually literally don't know what arguments the Supreme Court adopted to grant the stays. Lower court injunctions that are stayed by the U.S. Supreme Court are generally accompanied by detailed factual findings and detailed analysis of statutes and constitutional provisions that the Trump administration is violating. And so there's a lot of concern that the Supreme Court is creating black holes in the law for an administration that has been accused of ignoring the law, acting in lawless ways, acting in ways that represent executive will and not legal obligations and duties that statutes in the Constitution impose on the administration.
RASCOE: So what happens on the emergency docket that is generally, like, a temporary thing, they're going to hear arguments on the merits of these cases. Do you expect different outcomes when they hear the actual arguments of these cases, or are we to expect if they granted relief and allowed President Trump to continue doing what he's doing, that they will likely rule in the White House's favor when it comes to actual arguments?
ESKRIDGE: Well, most of the shadow docket emergency stays are not accompanied by any kind of Supreme Court grant of review. Most of the emergency stays just simply say the district courts that are hearing these cases, their orders are put on hold. The Trump administration then continues to litigate for who knows how long, and then the stay remains in effect through appeal to the Federal Courts of Appeals. And the stay remains in effect until the end of the litigation, which may come at the Supreme Court level, but may not come until the end of the circuit court evaluation. So there is no guarantee that the Supreme Court will ever take review in these cases, and the stays might remain in effect, conceivably even throughout the duration of the second Trump administration.
RASCOE: Is there any way to curb the use of the emergency docket?
ESKRIDGE: Conceivably, through some kind of action by Congress, but that is unlikely because any kind of statute could be vetoed by President Trump if Congress even bestirred itself to pass such a statute. The main response to a situation where concerned Americans believe that the executive is acting in a lawless way is continue to sue and continue to produce factual arguments and proof that the administration is acting outside of the law. Most of the injunctions issued by district courts against the Trump administration, pushing pause on arguably illegal or lawless actions, have not reached the Supreme Court's emergency docket. And of course, some of the decisions will be ultimately reviewed by the U.S. Supreme Court. It's unlikely that the six Republican justices will rule against the Republican president, but in some cases, presumably, they will.
RASCOE: That's William Eskridge. He's a professor at Yale Law School. Thank you so much for joining us.
ESKRIDGE: OK. Thank you.
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