Dem
47
GOP
53
Once again, the shadow docket has reared its ugly head. This time, it's a case brought by the American Federation of Government Employees, along with other state and local government unions and advocacy groups, who are challenging Donald Trump's February executive order that all federal agencies "promptly undertake preparations to initiate large-scale reductions-in-force (RIFs)" and an OMB memo ordering agencies to submit RIFs for approval and implementation. The plaintiffs contend, among other things, that while the XO asks agencies to "undertake preparations," the agencies have already carried out RIF's including "dismantling entire offices" and firing "half or more of all agency employees."
The district court granted a preliminary injunction; the Trump administration appealed to the Ninth Circuit and asked for a stay of the injunction pending the appeal, which the Ninth Circuit denied. So, up to the Supreme Court went the White House for an "emergency" stay, because that is the playbook now. No other litigant is afforded the access to SCOTUS that this administration enjoys.
On Tuesday, the Court granted the stay application in a brief 2-paragraph order, saying the XO and OMB memo were likely lawful, so it was appropriate to put the preliminary injunction on hold while the appeals continued. The Court specifically noted that "[w]e express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum. The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order and Memorandum, not on any assessment of the plans themselves." While we can't know the exact vote count, in this case we know that Associate Justice Sonia Sotomayor voted with the majority, since she penned a concurrence, while Associate Justice Ketanji Brown Jackson dissented.
There are a couple of problems here, which Jackson points out in her dissent. The first is the same problem we've seen so many times with the Court majority's increased reliance on the shadow docket to essentially decide cases without knowing all the facts, and without having the case fully briefed. There's a reason it's called an "emergency" docket—the Court is only supposed to step in under the most rare and unique circumstances because of the lack of transparency in not fully explaining the Court's reasoning in these orders (including how each Justice voted) and because the chances of making a mistake are so much greater. But Trump not being able to do what he wants as soon as he wants is apparently sufficient for this Court to involve itself.
The second is that, as Jackson notes, the district court is in the best position to evaluate the evidence and decide what the facts are—which the Supreme Court can't be bothered with in this posture. And the facts on the ground are critical. According to the Court's order, any actual RIFs are not before the Court, so it is expressing no opinion about their legality. But according to the plaintiffs, the agencies are, in fact, moving ahead with RIFs under this XO. And the district court heard evidence and issued preliminary findings that this was happening. So, that judge enjoined any implementation of the XO, as well as the XO itself.
Justice Sotomayor threw the district court and the plaintiffs a bone by stating in her concurrence that since the RIFs are not before the Court, the district court is "free to consider those questions in the first instance." How that works in practice is hard to say, since that will require additional discovery and a review of each agency's plans, which will mean further delays. Meanwhile, the dismantling of Congressionally-authorized agencies will continue apace with no input from the increasingly-less-equal branch that created them. (L)