While President Donald Trump battles growing pushback from lawmakers and American voters on multiple fronts, he is continuing to score victories in another arena: the Supreme Court’s so-called “shadow docket.” On Tuesday, the Court issued an emergency order allowing Trump to resume deporting people to “third countries” other than their own, temporarily lifting a lower court’s block. Days earlier, in response to another emergency request from the Trump Administration, the Court permitted the use of a controversial Department of Homeland Security (DHS) database in verifying the eligibility of voters ahead of the November midterms amid the Trump Administration's aggressive effort to crack down on alleged non-citizen voting. Read More: ‘The Problem Is Infinitesimal’: What the Trump Administration's Intensifying Hunt for Non-Citizen Voters Is Showing In both cases, the orders were unsigned and gave no vote count, but the Court’s three liberal Justices publicly dissented.
The rulings are only the latest in a string of mostly favorable decisions the Trump Administration has received from the Supreme Court in response to a flurry of requests for emergency relief it has made as it fights to implement the President’s second term agenda amid an array of legal challenges. Trump has already made significantly more of those requests than any other President in recent history. And the Administration has shown no signs of slowing the pace of its emergency petitions to the Court.
On Monday, it submitted yet another such request, asking the Justices to allow it to place restrictions on gender-affirming care for transgender inmates in federal prisons after the policy was halted by a district court judge in Washington, D.C. Legal experts tell TIME that the Supreme Court has been far more permissive towards the Administration’s frequent emergency requests than in the past, allowing Trump to move forward his executive agenda with less legal constraint than his predecessors. Justices can respond to those requests by temporarily overturning lower courts’ decisions on, say, Executive Orders that judges deemed unconstitutional.
Unlike the high court’s traditional merits docket, which involves extensive legal review, oral arguments, months of deliberation by the justices, and a written decision on each case, the shadow docket’s process is accelerated and produces decisions that do not require vote counts or written rationale. Traditionally, an application to the shadow docket must still satisfy certain legal criteria in order for that request to be approved. The applicant must show that irreparable harm may occur if a lower court’s order is not paused, or that approval would serve in the public’s interest.
But critics of the Supreme Court’s shadow docket rulings during Trump’s second term say that in many cases, the high court has failed to show that those criteria have been satisfied and simply approved Trump’s requests. Trump, however, submitted 41 applications in his first term, and has already made the same number of requests in his second term. And he’s had a high success rate: Since Trump returned to office last January, the Supreme Court has issued 32 decisions on shadow docket rulings concerning his Administration.
Of those cases, 24 have been decided in favor of the Administration. Those rulings have allowed Trump to move ahead with actions related to his sweeping immigration crackdown, government cuts, and contentious construction projects, among a number of other issues. Last month alone, along with its decisions to permit third-country deportations and the use of the revamped DHS database in verifying voter eligibility, the Supreme Court also allowed Trump to temporarily withhold $4 billion in foreign a
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