Interim Orders, the Presidency, and Judicial Supremacy

ESSAY
INTERIM ORDERS, THE PRESIDENCY,
AND JUDICIAL SUPREMACY
Jack Goldsmith∗
INTRODUCTION
Article III protects federal judges with life tenure and salary guarantees.1 But politics still impacts federal courts, especially the Supreme
Court. This influence is transmitted through presidential elections; Senate confirmations; congressional control over the Court’s size, appellate
jurisdiction, and remedies; and presidential threats to defy the Court’s
judgments or opinions.2 These pressures help explain why the Court’s
jurisprudence has often been sensitive to major political concerns.3
They also explain why the Court sometimes accommodates short-term
political threats even as it seeks to preserve its own power and legitimacy over the longer term.4
The Supreme Court and lower federal courts in 2025 faced political
hostility redolent of prominent past challenges to judicial authority.5
President Trump has issued a historically large number of executive orders and engaged in other executive actions premised on a very broad
conception of executive power.6 In the avalanche of responsive lawsuits,
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∗ Learned Hand Professor, Harvard Law School. For comments and conversation, I thank
Jonathan Adler, Will Baude, Rishabh Bhandari, Sam Bray, Brian Fletcher, Matt Gluck, Bert
Huang, Tom Koenig, Chris Moore, Jim Pfander, Rick Pildes, Richard Re, Thomas Schmidt, Mila
Sohoni, Cass Sunstein, and Adrian Vermeule. For research, I thank Kristijan Barnjak, Daniel
Freedline, Bryce Klehm, Myles McKnight, Sean O’Neil, Akhil Rajasekar, and Andrew Reed.
1 U.S. CONST. art. III, § 1.
2 On the political and congressional influences, see generally PRESIDENTIAL COMM’N ON
THE SUP. CT. OF THE U.S., FINAL REPORT ch. 1 (2021) [hereinafter PRESIDENTIAL COMM’N
ON THE SUP. CT.], https://www.presidency.ucsb.edu/sites/default/files/documents_with_attached_
files/376063/168144.pdf [https://perma.cc/WAN5-TQUR]. On the presidential threats, see generally
Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist
Age, 96 TEX. L. REV. 487, 503–05 (2018).
3 See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION
16–18 (2009); Robert C. Post, The Supreme Court, 2002 Term — Foreword: Fashioning the Legal
Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003); Michael J. Klarman, The
Supreme Court, 2012 Term — Comment, Windsor and Brown: Marriage Equality and Racial Equality, 127 HARV. L. REV. 127, 128–29 (2013). For a challenge to the strong version of the claim that
the Court “cannot and does not stray too far from ‘majoritarian views,’” see Richard H. Pildes, Is
the Supreme Court a “Majoritarian” Institution?, 2010 SUP. CT. REV. 103, 105, 117 (2011).
4 See Curtis A. Bradley & Neil S. Siegel, The Supreme Court Under Threat: Early Lessons in
Judicial Self-Protection 3–6 (Sep. 23, 2025), https://papers.ssrn.com/abstract=5325857 [https://
perma.cc/95YP-DDSV].
5 For an overview, see generally PRESIDENTIAL COMM’N ON THE SUP. CT., supra note 2,
ch. 1.
6 See infra notes 68–70 and accompanying text.
86
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THE SUPREME COURT — ESSAY
87
lower federal courts enjoined the orders and actions on an unprecedented scale, often on a universal basis.7 The Trump Administration
verbally accosted these courts, called for impeachment of judges, gamed
judicial orders, and appeared to threaten defiance.8 Members of Congress were similarly hostile.9 Commentators worried that these events
signaled that the executive branch would disregard judicial decisions,
including Supreme Court decisions.10 Some Justices worried about the
same thing.11
The Court did not respond to these challenges via “merits” decisionmaking — a slow and diminishingly relevant mechanism to redress
contemporary executive power challenges. Rather, it responded with
interim orders that ruled on applications to stay or vacate lower court
injunctions, or to grant injunctive relief, against the government. This
Essay focuses on the eighteen such orders that the Court issued in the
first seven months of the second Trump Administration, from January
20, 2025, through August 20, 2025. Interim orders typically come very
early in a case and determine the legal status of the executive action in
question during the oft-lengthy period between filing and Supreme
Court review of a final judgment. They sometimes even resolve a case.
And they can have a broad stare decisis impact on lower courts even
though they typically contain little reasoning and are not decisions on
the merits.
The presidency-related interim orders under study built on a decade
of significant interim orders by the Court that have responded to two
general trends. First, executive branch activism, fueled by a robust conception of presidential administration, reached new heights in the face
of congressional dysfunction.12 Second, lower courts issued an unprecedented spate of universal injunctions and related remedies in response
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7 See infra notes 71–73 and accompanying text.
8 See infra notes 74–75.
9 See infra note 74.
10 Steven Greenhouse, Will Donald Trump Defy the US Supreme Court?, THE GUARDIAN
(May 28, 2025, at 10:30 ET), https://www.theguardian.com/commentisfree/2025/may/28/trumpdefy-supreme-court [https://perma.cc/8STG-SQZ7]; Erwin Chemerinsky, The One Question that
Really Matters: If Trump Defies the Courts, Then What?, N.Y. TIMES (Mar. 7, 2025), https://
www.nytimes.com/2025/03/07/opinion/trump-courts-judges.html [https://perma.cc/5E3G-RTAW];
Yasmin Abusaif & Douglas Keith, What Courts Can Do If the Trump Administration Defies Court
Orders, BRENNAN CTR. FOR JUST. (Feb. 14, 2025), https://www.brennancenter.org/our-work/
research-reports/what-courts-can-do-if-trump-administration-defies-court-orders [https://perma.cc/
ZMP6-ZGZB].
11 See infra section IV.C, pp. 121–24.
12 See Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 HARV. L. REV.
937, 946 (2022); see also Trump v. CASA, Inc., 145 S. Ct. 2540, 2572 (2025) (Kavanaugh, J., concurring) (noting “the increasing number of major new executive actions by recent Presidential administrations (of both political parties) that have had difficulty passing significant new legislation
through Congress”); Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2344
(2001) (identifying beginnings of trend a quarter century ago).
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to executive initiatives.13 The Court engaged these trends with a
discretion-laden form of judicial decisionmaking that is procedurally
truncated and short on explanation but nonetheless very significant in
impact. The Court’s 2025 orders contain many innovations in this
evolving form of adjudication.
The dominant theme in the Court’s 2025 orders is the protection and
enhancement of its ultimate authority to interpret federal law. Horizontally, where judicial supremacy is vulnerable, the orders negotiated the
complex space between vindicating the Court’s view of federal law and
keeping a minatory President in compliance with that law and the
Court’s rulings. Vertically, where the Court’s supremacy is robust but
not always efficacious, the orders tightened its early control over lower
courts’ responses to executive action, enabling it to shape the judiciary’s
collective stance. These twin efforts came to a head in the Court’s invalidation of universal injunctions in the interim order opinion in Trump
v. CASA.14 The ruling eliminated a lower court tool to block presidential
programs, extracted a historic executive branch pledge of fealty to Supreme Court “judgments and . . . opinions,” and clarified the Court’s
conception of its supremacy in other ways.15
This Essay proceeds as follows. Part I introduces Supreme Court
interim orders and the dispute over universal injunctions. Part II analyzes the presidency-focused orders issued by the Supreme Court during
the period under study. Though the executive branch prevailed in the
vast majority, the evidence does not support the view that, as some have
claimed, the Court is appeasing a law-breaking presidency. Part III focuses on how the Court enhanced its vertical control over the lower
federal courts through important innovations in its interim orders practice. Part IV examines CASA. It questions the Court’s method for determining the validity of equitable remedies like universal injunctions,
assesses the decision’s impact on the Court’s interim orders practice going forward, and analyzes how CASA surfaced and tentatively resolved
one of the hardest questions in constitutional law — the nature of the
President’s duty to abide by Supreme Court decisions.
I. INTERIM ORDERS AND UNIVERSAL INJUNCTIONS
This Part explains the role of interim orders on the Court’s docket
and provides the background to the 2025 skirmish over universal
injunctions.
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13 Developments in the Law — Chapter Four: District Court Reform: Nationwide Injunctions,
137 HARV. L. REV. 1701, 1705 (2024) [hereinafter District Court Reform].
14 Trump v. CASA, Inc., 145 S. Ct. 2540 (2025).
15 Id. at 2561 n.18.
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A. Interim Orders
The Supreme Court’s docket records the matters submitted to it in
connection with various decisions that it makes, ranging from petitions
for certiorari to decisions on the merits to various motions (such as a
motion to file an amicus brief or for an extension of time).16 A slice of
the docket involves “Applications” under Rule 22.17 The most prominent applications concern requests to stay or vacate a lower court injunction and requests to grant an injunction that lower courts
withheld.18 A stay by the Court halts or postpones a judicial order below pending ultimate review by the Court.19 An injunction, by contrast,
“directs the conduct of a party . . . with the backing of [the Court’s] full
coercive powers” pending the Court’s ultimate review on the merits.20
In ruling on these applications, the Court determines the “interim status
of the law” during the months or years of further adjudication until final
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16 See, e.g., SUP. CT. RS. 12.3, 17.4, 20.2, 37.2. “The docket” is referenced throughout the
Supreme Court’s rules. Id. A “Docket Search” is available at www.supremecourt.gov/docket/
docket.aspx [https://perma.cc/MND9-TEXV].
17 SUP. CT. R. 22. Rule 22, entitled “Applications to Individual Justices,” does not specify what
types of applications can be filed. Id. As the title suggests, applications must be submitted to an
individual Justice, who typically refers important ones to the entire Court. See SUP. CT. RS. 22.1,
22.5; STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE § 17.1 (11th ed. 2019). Applications generally tend to seek stays and injunctions, but parties can file other applications, including
for bail, extension of time, or a certificate of appealability. See Greg Goelzhauser, The Applications
Docket, 58 GA. L. REV. 97, 154–56 (2023). The Court’s rules provide additional guidance for
“Stays” in particular. SUP. CT. R. 23.
18 See Goelzhauser, supra note 17, at 119 n.80, 135 n.144. The Court can also issue an administrative stay that temporarily suspends a lower court order during the period of deliberation over
whether to issue a longer-lasting stay. See United States v. Texas, 144 S. Ct. 797, 799 (2024) (Barrett,
J., concurring in denial of applications to vacate stay) (“[A]n administrative stay is supposed to be
a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal.”). The
legal bases for an administrative stay are likely the All Writs Act, 28 U.S.C. § 1651, and the Court’s
inherent authority to manage its docket. Rachel Bayefsky, Administrative Stays: Power and Procedure, 97 NOTRE DAME L. REV. 1941, 1960–64 (2022).
19 Nken v. Holder, 556 U.S. 418, 428 (2009). The Supreme Court has three sources of authority
to issue or vacate a stay: 28 U.S.C. § 2101(f); the All Writs Act, 28 U.S.C. § 1651(a); and the Court’s
inherent docket-management authority, Nken, 556 U.S. at 426. Section 2101(f) is irrelevant to the
interim orders under study because it is limited to a “case in which the final judgment or decree of
any court is subject to review by the Supreme Court on writ of certiorari.” 28 U.S.C. § 2101(f).
20 Nken, 556 U.S. at 428. The Court has authority to issue or vacate an injunction under the
All Writs Act. 28 U.S.C. § 1651(a); see, e.g., Ohio Citizens for Responsible Energy, Inc. v. Nuclear
Regul. Comm’n, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers) (referring to “an original writ
of injunction, pursuant to the All Writs Act”).
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disposition by the Court.21 Sometimes the interim order effectively resolves the case.22
Since a Supreme Court order on a stay or an injunction concerns
interim relief, it should, in accordance with its function, be called an
“interim order.”23 Many commentators, and occasionally members of
the Court, describe these orders as “emergency” orders.24 Yet the
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21 Labrador v. Poe, 144 S. Ct. 921, 929 (2024) (Kavanaugh, J., concurring in the grant of stay).
By “final disposition,” I mean a decision by the Court whether to grant a petition for writ of certiorari and, if granted, the disposition of the case following the grant. An interim order typically
makes clear its interim impact pending final resolution. For instance, when staying a district court
injunction, the Court will typically indicate three things: (1) the injunction is “stayed pending the
disposition of the appeal in the” appropriate circuit and “disposition of a petition for a writ of
certiorari, if such a writ is timely sought”; (2) “[s]hould certiorari be denied, this stay shall terminate
automatically”; and (3) if “certiorari is granted, the stay shall terminate upon the sending down of
the judgment of this Court.” Trump v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 2635, 2635 (2025); see
also Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam) (similar formulation for scope of
injunctive relief).
22 See WILLIAM BAUDE, JACK GOLDSMITH, JOHN F. MANNING, JAMES E. PFANDER &
AMANDA L. TYLER, HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 371 n.1, 386 n.4 (8th ed. 2025) [hereinafter HART & WECHSLER].
23 See Nken, 556 U.S. at 427 (referring to stays and injunctions as “interim relief”). This is the
terminology employed by SUPREME COURT PRACTICE, see SHAPIRO ET AL., supra note 17,
§ 17.1, and has been used by Justices for decades. See, e.g., Labrador, 144 S. Ct. at 924 (Gorsuch,
J., concurring in the grant of stay, joined by Thomas & Alito, JJ.); Dep’t of Educ. v. California, 145
S. Ct. 966, 973 (2025) (Jackson, J., dissenting, joined by Sotomayor, J.); San Diegans for the Mt.
Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1304 (2006) (Kennedy, J., in chambers); Certain
Named & Unnamed Non-Citizen Child. & Their Parents v. Texas, 448 U.S. 1327, 1330–31 (1980)
(Powell, J., in chambers); Coleman v. PACCAR Inc., 424 U.S. 1301, 1302 (1976) (Rehnquist, J., in
chambers); Williams v. Rhodes, 89 S. Ct. 1, 2 (1968) (Stewart, J., in chambers); Panama Canal Co.
v. Grace Line, Inc., 77 S. Ct. 854, 854 n.* (1957) (Harlan, J., in chambers).
Professor Greg Goelzhauser treats interim orders as part of the “applications docket” since
they all involve “applications” made under Rule 22 and are all designated with an “A” series number. Goelzhauser, supra note 17, at 104–05. Because of the A-series designator, applications have a
more plausible claim to being a discrete subdocket than do emergency orders or the “shadow
docket,” a term that has a much wider meaning. See Thomas P. Schmidt, Orders Without Law, 122
MICH. L. REV. 1003, 1005 (2024); William Baude, Foreword: The Supreme Court’s Shadow Docket,
9 N.Y.U. J.L. & LIBERTY 1, 3–5 (2015). And “applications docket” as a label makes sense for
Goelzhauser because he is studying more than interim orders. But there is no “applications docket”
per se. And the label “applications docket” is too broad for my purposes because it includes numerous miscellaneous applications not involving interim relief. Goelzhauser, supra note 17, at 155–56.
The phrase “interim orders” is a better description of what these orders seek and how the orders
operate when issued.
24 On the Court, see, for example, Trump v. Wilcox, 145 S. Ct. 1415, 1418 (2025) (Kagan,
J., dissenting from the grant of the application for stay); Trump v. J.G.G., 145 S. Ct. 1003, 1012
(2025) (Sotomayor, J., dissenting); and Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (Kavanaugh,
J., concurring in the grant of applications for stays). For commentators, see, for example, HART &
WECHSLER, supra note 22, at 371–99; Trevor N. McFadden & Vetan Kapoor, The Precedential
Effects of the Supreme Court’s Emergency Stays, 44 HARV. J.L. & PUB. POL’Y 827, 828 (2021), and
Edward L. Pickup & Hannah L. Templin, Emergency-Docket Experiments, 98 NOTRE DAME L.
REV. REFLECTION 1, 1 (2022).
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“emergency” label, which connotes an urgent need for decision, misleads.25 Applicants sometimes characterize a request for a stay or injunction as an “emergency.”26 But often they do not.27 The tests for
granting or vacating a stay or injunction do not fluctuate depending on
how quickly the parties claim to need resolution.28 And the Court is
under no compulsion to resolve the applications quickly. Sometimes it
does, but often it takes a long time.29
Interim orders are by doctrine discretionary and context dependent.30 In deciding whether to grant or deny an application concerning
a stay or injunction, the Court applies a multi-factor test that assesses
the applicant’s likelihood of success on the merits, irreparable harm, and
a balance of equities that sometimes includes the public interest.31 The
merits assessment predominates in practice.32 The other factors are
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25 See Emergency, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/
emergency [https://perma.cc/9HVJ-JK6Y] (defining “emergency” as “an unforeseen combination of
circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance
or relief”). For extended criticism of the “emergency” label, see Goelzhauser, supra note 17, at 104–
07. The label may have been more apt in the past when the most prominent applications were lastminute requests to stay capital executions. See id. at 116.
26 See, e.g., Application for a Stay of the Injunction Issued by the United States District Court
for the Eastern District of Texas at 10, McHenry v. Tex. Top Cop Shop, 145 S. Ct. 1 (2025) (No.
24A653) (characterizing a request for a stay as an “emergency application[]”); see also CASA, 145 S.
Ct. at 2548 (describing the government’s requests as “emergency applications”). The Court’s rules
require that an “amicus curiae brief in connection with an application under Rule 22 . . . be filed as
promptly as possible considering the nature of the relief sought and any asserted need for emergency
action,” cautioning that “[i]n light of the time-sensitivity of such applications, the filing of these
briefs is discouraged.” SUP. CT. R. 37.4. It is unclear if the contemplated “time-sensitivity” refers
to all such applications or only to ones where a party asserts a “need for emergency action,” but
nothing in the Rules requires the Court to act fast in either case, and it often does not. See infra
note 29 and accompanying text.
27 See, e.g., Application for a Partial Stay of the Injunction Issued by the United States District
Court for the District of Maryland at 1, CASA, 145 S. Ct. 2540 (No. 24A884) [hereinafter Application
for a Partial Stay].
28 One time-based prerequisite for interim relief may be that an applicant must show that it
faces irreparable harm during the period of the underlying appeal, which can be expected to last at
least several months even with expedition. See West Virginia v. EPA, 145 S. Ct. 2, 2 (2024) (Kavanaugh, J., respecting the denial of applications for stay, joined by Gorsuch, J.) (noting that stay
is unwarranted even though “applicants have shown a strong likelihood of success on the merits”
because their requisite compliance work need not start for eight months and thus they are “unlikely
to suffer irreparable harm before the Court of Appeals for the D. C. Circuit decides the merits”).
29 Goelzhauser reports from a dataset of noncapital stay and injunctive relief applications from
the 2003 through 2021 Terms that the median noncapital application “was decided 11 days after
submission, with a range from same-day disposition to 202 days.” Goelzhauser, supra note 17, at
145; infra section III.B pp. 108–11 (discussing time periods for ruling on interim order requests in
OT 2024).
30 See Nken v. Holder, 556 U.S. 418, 433 (2009) (stays); Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982) (injunctions); see also Nken, 556 U.S. at 434 (noting “substantial overlap between
[stay factors] and the factors governing preliminary injunctions”).
31 E.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (injunctions); Nken, 556 U.S.
at 425–26 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)) (stays).
32 See Samuel L. Bray, The Purpose of the Preliminary Injunction, 78 VAND. L. REV. 809, 827–
31 (2025).
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open ended, and how they apply in combination is contested.33 Doctrinal uncertainties pervade other aspects of interim orders.34 These considerations often make it difficult to assess whether the Court’s interim
orders properly apply law to fact — especially, as is often the case, when
the Court issues an interim order without any explanation. In practice,
the governing law on interim orders gives the Court maximum leeway
whether to grant or deny an interim order application.
B. Universal Injunctions Against the Government
Supreme Court interim orders have grown in number and importance over the last decade.35 One important reason why in cases
involving presidential power is a spike in lower court universal injunctions against the executive branch.36 A universal injunction binds the
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33 See HART & WECHSLER, supra note 22, at 386–90.
34 A few examples: (1) The Court sometimes says that the probability the Court would grant
certiorari in the case is an element of the test for a stay. Hollingsworth v. Perry, 558 U.S. 183, 190
(2010) (per curiam). It is unclear whether this criterion applies to applications for injunctive relief,
see HART & WECHSLER, supra note 22, at 381–83; cf. Does 1–3 v. Mills, 142 S. Ct. 17, 18 (2021)
(Barrett, J., concurring in the denial of application for injunctive relief) (suggesting that it should).
And in any event, certworthiness itself is an entirely discretionary judgment, and the main criterion
in practice, a circuit split, will rarely be present when assessing new presidential actions. See Note,
The Role of Certiorari in Emergency Relief, 137 HARV. L. REV. 1951, 1968–70 (2024). (2) Nken
stated that a stay “suspend[s] judicial alteration of the status quo.” 556 U.S. at 429 (alteration in
original) (emphasis added) (quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul.
Comm’n, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)). The Court’s interim-order analysis
often focuses on and reverts to the “status quo,” but “it is unsettled whether the ‘status quo’ to be
preserved by a stay is the situation before the law is enacted, after the law is enacted but before
judicial review, or the situation after one or both of the lower courts have ruled.” HART &
WECHSLER, supra note 22, at 376 n.1; see also Labrador v. Poe, 144 S. Ct. 921, 930 (2024) (Kavanaugh, J., concurring in the grant of stay) (identifying “no sound or principled reason to pick one
over [the ]other”). (3) The Court has stated an injunction “demands a significantly higher justification” than a stay, Respect Me. PAC v. McKee, 562 U.S. 996, 996 (2010) (quoting Ohio Citizens for
Responsible Energy, 479 U.S. at 1313 (Scalia, J., in chambers)), but the Court in practice does not
always follow this rule, see HART & WECHSLER, supra note 22, at 381 & n.1 (describing cases).
For other examples of doctrinal uncertainties, see Note, The Role of Certiorari, supra, at 1963 (no
established test for vacating stays and injunctions); Note, Halting Administrative Action in the
Supreme Court, 137 HARV. L. REV. 2016, 2016 (2024) (“The Court has not answered the question
whether its test for a stay or its test for an injunction should govern its analysis of preliminary
requests to halt administrative action.”).
35 See STEPHEN VLADECK, THE SHADOW DOCKET: HOW THE SUPREME COURT USES
STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC 243 (2023); Schmidt,
supra note 23, at 1015–16. There are many reasons why. See HART & WECHSLER, supra note 22,
at 398 (listing the “rise in universal injunctions,” “the rise of [interim order requests related to] the
COVID-19 pandemic,” “the growth of voting rights litigation,” “the [first] Trump administration’s
[renewal] of the federal death penalty,” “changes in . . . tests for emergency relief noted above,” and
“the changing composition of the Court”).
36 See CASA, 145 S. Ct. at 2548–50. District Court Reform, supra note 13, at 1705–06, reports
that in a dataset of universal injunctions from 1963 through the end of 2023 (the third full year of
the Biden Administration), lower courts issued 127 universal injunctions, ninety-six of which occurred from 2001 to 2023. During that period, six injunctions were issued against the Bush Administration over eight years, twelve against the Obama Administration over eight years, sixty-four
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government as to everyone and not just the parties to the litigation.37
These injunctions grew in part in response to a rise in executive orders
and other presidential or agency actions that make broad claims of executive power.38 Plaintiffs often succeeded in forum shopping for judges
who enjoined these actions on a universal basis.39
Absent appellate intervention, a single district judge can by universal injunction block a presidential program for months or years, even if
every other district court in the nation would uphold it.40 If the Supreme
Court allows such an injunction to stand or issues its own, the presidential action may be on ice for months or years — even though the action
could ultimately be deemed lawful after full appellate review.41 Conversely, if the Court stays the universal injunction, the presidential action may proceed during the months or years of litigation, even though
it may later be ruled unlawful.
Universal injunctions have sparked disputes between the federal judiciary and presidential administrations of both parties since at least the
start of the first Trump Administration.42 That administration, on a
smaller scale than the second, engaged in controversial executive actions
that led to a then-unprecedented wave of lower court universal injunctions that in turn prompted fears of executive branch defiance and
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against the first Trump Administration over its four years, and fourteen during the first three years
of the Biden Administration, id., the latter number of which grew to twenty-eight by the end of
President Biden’s term, according to a study that used a different methodology than the Harvard
Law Review Chapter. See JOANNA R. LAMPE & LAURA DEAL, CONG. RSCH. SERV., R48467,
NATIONWIDE INJUNCTIONS UNDER THE FIRST TRUMP ADMINISTRATION AND THE BIDEN
ADMINISTRATION 10 (2025) (finding eighty-six rather than sixty-four first-term Trump orders).
Two contributors to the growth in Supreme Court interim orders that are functionally similar
to but analytically distinct from universal injunctions are universal remedies for vacatur under the
Administrative Procedure Act, 5 U.S.C. § 706(2), and stays of agency action, see id. § 705. See
District Court Reform, supra note 13, at 1713; LAMPE & DEAL, supra, at 31–32; ZACHARY
CLOPTON, MILA SOHONI & EDWARD STIGLITZ, NATIONWIDE INJUNCTIONS AND FEDERAL
REGULATORY PROGRAMS 7 (June 4, 2024) (report for the Administrative Conference of the
United States). The legality of universal vacatur is contested. Compare United States v. Texas, 143
S. Ct. 1964, 1979–85 (2023) (Gorsuch, J., concurring in the judgment) (criticizing Section 706 vacatur), with Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2466–69
(2024) (Kavanaugh, J., concurring) (defending vacatur). And the legality of universal vacatur and
stays under §§ 705 and 706(2) remains open after the limitation on universal injunctions in CASA,
which expressly declined to address vacatur, see 145 S. Ct. at 2554 n.10, and which did not mention
a § 705 stay.
37 CASA, 145 S. Ct at 2548; District Court Reform, supra note 13, at 1703–04 (citing JOANNA
R. LAMPE, CONG. RSCH. SERV., LSB10664, NATIONWIDE INJUNCTIONS: RECENT LEGAL
DEVELOPMENTS (2021)).
38 CASA, 145 S. Ct. at 2572 (Kavanaugh, J., concurring).
39 See id. at 2559 (majority opinion).
40 See id. at 2584 (Sotomayor, J., dissenting). A universal injunction can also stifle percolation
of the issue in other courts. See id.; District Court Reform, supra note 13, at 1707–08.
41 See CASA, 145 S. Ct. at 2568 (Kavanaugh, J., concurring).
42 The Court as early as 2008 granted certiorari on the question of the validity of a universal
injunction in an Administrative Procedure Act context but did not rule on the issue in its final
decision. Petition for a Writ of Certiorari at 24–31, Summers v. Earth Island Inst., 555 U.S. 488
(2009) (No. 07-463); Summers, 555 U.S. at 500–01.
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Republican congressional reforms.43 The Biden Administration also engaged in controversial executive action and faced such injunctions,
which its Justice Department criticized and asked the Court to narrow,
and which Democratic lawmakers also sought to reform.44 By the end
of the Biden Administration, “almost every major presidential act [was]
immediately frozen by a federal district court.”45
Universal injunctions have also been a major point of contention
between the Supreme Court and the lower federal courts. There has
been a persistent ideological gap between the Court and district court
judges during the period in which universal injunctions have become
more prominent.46 A majority of sitting Justices had before October
Term (OT) 2024 issued or joined opinions criticizing lower court universal injunctions during this same period.47 Both the rise in executive
action and the spate of universal injunctions caused the Court to get
more heavily involved in reviewing presidential action via interim
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
43 On the universal injunctions, see District Court Reform, supra note 13, at 1705. On the fears
and reaction, see Jack Goldsmith, Will Donald Trump Destroy the Presidency?, THE ATLANTIC
(Oct. 2017), https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-thepresidency/537921 [https://perma.cc/JHM4-MQZW]; Nationwide Injunction Abuse Prevention Act
of 2019, S. 2464, 116th Cong. (2019); H.R. 4292, 116th Cong. (2019); Injunctive Authority Clarification Act of 2019, H.R. 77, 116th Cong. (2019).
44 On the Biden actions, see, for example, Notice of Debt Cancellation Legal Memorandum, 87
Fed. Reg. 52943 (Aug. 30, 2022); Temporary Halt in Residential Evictions in Communities with
Substantial or High Levels of Community Transmission of COVID-19 to Prevent the Further
Spread of COVID-19, 86 Fed. Reg. 43245 (Aug. 6, 2021). On the Justice Department, see, for example, Application for a Stay at 4, McHenry v. Tex. Top Cop Shop, Inc., 145 S. Ct. 1 (2025) (No.
24A653); Application for a Stay at 1, Biden v. Missouri, 145 S. Ct. 109 (2024) (No. 24A173) (mem.);
cf. Petition for a Writ of Certiorari at 25–31, Dep’t of Educ. v. Career Colls. & Schs. of Tex., 145 S.
Ct. 1039 (2025) (No. 24-413) (mem.) (strongly criticizing universal injunctions in petition seeking
review of a universal stay under 5 U.S.C. § 705). On Congress, see Injunction Reform Act of 2022,
H.R. 9660, 117th Cong. (2022); Stop Judge Shopping Act, S. 1265, 118th Cong. (2023).
45 CASA, 145 S. Ct. at 2550 (quoting William Baude & Samuel L. Bray, The Supreme Court,
2022 Term — Comment: Proper Parties, Proper Relief, 137 HARV. L. REV. 153, 174 (2023)).
46 This conclusion is based on an analysis of Judicial Common Space (JCS) scores, which offer
a unified scale for comparing judicial ideology across all levels of the federal judiciary. JCS scores
for district court judges are based on NOMINATE Common Space ideology scores, derived from
the appointing President’s and home-state senators’ ideologies. See Lee Epstein et al., The Judicial
Common Space, 23 J.L. ECON. & ORG. 303, 306 (2007). Supreme Court justices are assigned JCS
scores through a more complex method. See id. at 307. JCS scores range from -1 (most liberal) to
+1 (most conservative). From 2015 to 2023, the median Supreme Court JCS score was persistently
higher — or more conservative — than the median district court judge score. For instance, in 2015,
the median JCS score among the Justices was 0.180 points higher than the median JCS score among
all district court judges. That gap grew to 0.398 by 2019, contracted to 0.055 in 2022, and then
expanded again to 0.423 in 2023. For all median JCS scores between 2015 and 2023, see Appendix
I. Appendix, HARV. L. REV. 1, https://harvardlawreview.org/print/vol-139/appendix-for-interimorders-the-presidency-and-judicial-supremacy [https://perma.cc/XP5A-SKPM].
47 See United States v. Texas, 143 S. Ct. 1964, 1980 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.); Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas,
J., concurring); DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant
of stay, joined by Thomas, J.); Labrador v. Poe, 144 S. Ct. 921, 925–27 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.); id. at 931 (Kavanaugh, J., concurring in
the grant of stay, joined by Barrett, J.). Poe did not involve presidential action.
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orders very early in a case.48 The Court ruled on an unusual number of
important issues of presidential power via interim orders during the first
Trump and Biden Administrations.49
II. THE HORIZONTAL DIMENSION:
2025 INTERIM ORDERS AND THE PRESIDENCY
This Part overviews the Court’s 2025 interim orders as they impacted the presidency. It begins by examining the legal and political
basis for judicial supremacy, the soundness of which was in question as
a backdrop to the Court’s orders. It then turns to the interim orders,
analyzes how the government fared, and explains why it is hard to draw
firm conclusions about the significance of the data for the Court’s relationship with the executive branch.
A. Judicial Supremacy and the Executive Branch
As noted in the Introduction, Presidents have at times claimed a prerogative to disregard Supreme Court judgments and opinions.50 “Reconstructive presidents” have occasionally acted or threatened to act on
these claims in seeking “to challenge inherited constitutional and ideological norms and . . . to construct a new political regime.”51 Nonetheless, every administration has from the beginning generally treated
Supreme Court rulings as “supreme” in two senses. First, administrations have generally complied with adverse Supreme Court judgments.52
Second, they have generally treated Supreme Court opinions as binding
precedent in the sense that they follow the holding or the logic of the
opinion as a precedent when acting in other cases and contexts with
respect to nonparties — in other words, on a universal basis.53
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
48 CASA, 145 S. Ct. at 2559; Baude & Bray, supra note 45, at 165, 174.
49 See, e.g., Ohio v. EPA, 144 S. Ct. 2040, 2058 (2024); Danco Lab’ys, LLC v. All. for Hippocratic
Med., 143 S. Ct. 1075, 1075 (2023); Arizona v. Mayorkas, 143 S. Ct. 478, 478 (2022) (mem.); Nat’l
Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 666–67 (2022) (per curiam); Ala. Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (per curiam); Biden v.
Texas, 142 S. Ct. 926, 926 (2021) (mem.); DHS v. New York, 140 S. Ct. at 599; Barr v. E. Bay
Sanctuary Covenant, 140 S. Ct. 3, 3 (2019) (mem.); Trump v. Sierra Club, 140 S. Ct. 1, 1 (2019)
(mem.); Trump v. Karnoski, 139 S. Ct. 950, 950 (2019) (mem.); Trump v. Stockman, 139 S. Ct. 950,
950 (2019) (mem.); Trump v. Int’l Refugee Assistance Project, 138 S. Ct. 542, 542 (2017) (mem.); see
also West Virginia v. EPA, 577 U.S. 1126, 1126 (2016) (staying Clean Power Plan).
50 Fallon, supra note 2, at 503–05.
51 KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 23
(2007); see also id. at 50–58, 286. Whittington’s list of reconstructive Presidents, supported with a
detailed history throughout the book, includes: “Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and less strongly Ronald Reagan.” Id. at 23.
52 See Fallon, supra note 2, at 491, 507. For qualifications to the general pattern, see id. at 502–
07.
53 See id. at 491, 507. For exceptions and qualifications to the general pattern, see id. at 491–
92, 501.
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The executive branch has never clearly explained whether these
practices stem from legal obligation or pragmatic accommodation.54
Nor, really, has the Supreme Court. The Court declared that “the federal judiciary is supreme in the exposition of the law of the Constitution”
in Cooper v. Aaron.55 But Cooper addressed only state officials bound
by the Supremacy Clause.56 And the Court implicitly relied on the President to enforce its commands against those officials. The Court came
closer to declaring supremacy vis-à-vis the executive branch in United
States v. Nixon.57 There it claimed to be the “ultimate interpreter of the
Constitution.”58 But in the end it asserted only the power “to say what
the law is” on the issue “in th[e] case.”59 Nixon stands at most for the
proposition that judgments, not opinions, bind the executive branch.60
It may seem remarkable that in 236 years the Supreme Court and
the executive branch have never clearly settled whether and, if so, why,
the latter has a duty to follow opinions of the former. But at a deep
level the issue cannot be definitively settled. Supreme Court opinions
are not self-executing. “Courts are merely subdivisions of government,
lacking the powers of purse and sword that might be used to coerce the
compliance of other government officials . . . .”61 Judicial review operates “within politically constructed bounds” in the sense that its efficacy
ultimately depends on support from the political branches and the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
54 Early Attorney General opinions acknowledged a duty to comply with judicial judgments
issued by a court with jurisdiction. See William Baude, The Judgment Power, 96 GEO. L.J. 1807,
1821–22, 1835 (2008); see also Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979,
983 (1987) (Attorney General stating that a Supreme Court decision “binds the parties in a case and
also the executive branch for whatever enforcement is necessary” but not explaining why). The
executive branch came close to acknowledging its typical practice with regard to judicial opinions
in Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200
(1994) (“The Supreme Court plays a special role in resolving disputes about the constitutionality of
enactments. As a general matter, if the President believes that the Court would sustain a particular
provision as constitutional, the President should execute the statute, notwithstanding his own beliefs
about the constitutional issue.”). But see Meese, supra, at 983 (“[A Supreme Court] decision does
not establish a supreme law of the land that is binding on all persons and parts of government
henceforth and forevermore.”).
55 358 U.S. 1 (1958); id. at 18.
56 Id. at 18.
57 418 U.S. 683 (1974).
58 Id. at 704 (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)).
59 Id. at 705 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
60 Cf. City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (noting in a case rejecting congressional
supremacy that “[w]hen the political branches of the Government act against the background of a
judicial interpretation of the Constitution already issued, it must be understood that in later cases
and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed”).
61 Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law,
Public Law, 122 HARV. L. REV. 1791, 1831 (2009).
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THE SUPREME COURT — ESSAY
97
public.62 The executive branch’s usual adherence to Court decisions is
best seen as a self-enforcing equilibrium that benefits both sides.63
The basic logic of this arrangement is that the Court helps political
actors by validating their actions across the bulk of (but not all) cases,
by resolving issues they prefer to avoid, and by offering “insurance” to
their policies (and to them) once out of office.64 The President and Congress in turn support judicial review, which empowers the Court. Each
side typically incurs costs from too great or too sustained a departure
from the cooperative balance. A President can suffer politically by defying a Court that has the support of the people and Congress. The
Court risks defiance of its rulings or alteration of its jurisdiction, composition, and the like.65 This equilibrium, like many customary practices, has long worked without overt acknowledgment.
On this view, Supreme Court judgments and opinions in equilibrium
are “supreme.” This has been the normal state of affairs in American
history. But the arrangement has not always been stable, as the
occasional “reconstructive presidency” seeking a dramatically different
equilibrium exemplifies.66 Reconstructive Presidents tend to be departmentalists who “deny judicial supremacy,” “reject the idea that the
Court is the ultimate expositor of constitutional meaning,” and “ignore
the Court’s constitutional reasoning and act upon their own independent constitutional judgments.”67
B. Trump 2.0 and the Supreme Court’s Response
The Trump Presidency appears to have reconstructive ambitions.68
At the foundation of its efforts are the 191 executive orders it issued,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
62 Fallon, supra note 2, at 493–94.
63 The account that follows draws primarily on Daryl J. Levinson, Parchment and Politics: The
Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. 657, 711–12, 733–45 (2011), and
Fallon, supra note 2, which in turn draw on WHITTINGTON, supra note 51; FRIEDMAN, supra
note 3; and Mark A. Graber, Constructing Judicial Review, 8 ANN. REV. POL. SCI. 425, 425–28
(2005), from which I also learned.
64 Fallon, supra note 2, at 508–09 (drawing on political science literature); see also Levinson,
supra note 63, at 712 (explaining that constitutional restraints serve as a form of “insurance” for
those in power by providing reciprocal protection).
65 See Fallon, supra note 2, at 509.
66 See WHITTINGTON, supra note 51, at 49–81.
67 Id. at 23.
68 See Charlie Savage, Trump’s Maximalist Assertion of Presidential Power Tests the Rule of
Law, N.Y. TIMES (Apr. 30, 2025), https://www.nytimes.com/2025/04/30/us/politics/trump-100-dayspresident-power-law.html [https://perma.cc/8T8Z-U4CZ]; Bob Bauer & Jack Goldsmith, The Trump
Executive Orders as “Radical Constitutionalism,” EXEC. FUNCTIONS (Feb. 3, 2025), https://
executivefunctions.substack.com/p/the-trump-executive-orders-as-radical [https://perma.cc/TU74J2DC]. It is too early to tell if the effort will succeed. As Whittington notes, “not every oppositional
president is as well positioned to remake the inherited order as Jefferson, Jackson, Lincoln, and
Roosevelt were.” WHITTINGTON, supra note 51, at 24. Moreover, the Administration has not,
yet — as did these reconstructive Presidents — made departmentalist claims vis-à-vis the Supreme
Court. To the contrary, it articulated unusual accommodations to Supreme Court supremacy. See
infra section IV.C, pp. 121–24.
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and related actions it took, between January 20, 2025, and August 20,
2025.69 In number and ambition, these orders and actions have no close
equal in modern times, and are exceeded on these dimensions in the last
century only by Franklin D. Roosevelt, the last clearly reconstructive
President.70
The executive orders and actions sparked hundreds of lawsuits challenging their legality.71 District courts issued injunctions — primarily,
temporary restraining orders or preliminary injunctions — in more than
100 of these cases.72 Dozens of these rulings were universal injunctions
that constrained the government with respect to nonparties everywhere.73 These rulings attracted sharp responses from the Trump
Administration and some members of Congress, including calls for impeachment.74 The Administration also gamed judicial orders and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
69 The American Presidency Project, U.C. SANTA BARBARA, Donald J. Trump (2nd Term) Executive Orders, https://www.presidency.ucsb.edu/advanced-search?field-keywords=&field-keywords2=
&field-keywords3=&from%5Bdate%5D=01-20-2025&to%5Bdate%5D=08-20-2025&person2=375125&
category2%5B%5D=58&items_per_page=100 [https://perma.cc/JD7Y-S55N].
70 President George W. Bush issued twenty-five and fourteen executive orders in the first seven
months of his first and second terms, respectively (and 173 such orders total in his first term and
118 in his second). President Barack Obama issued twenty-two and sixteen orders in the first seven
months of his first and second terms, respectively (147 total orders in his first term and 129 in his
second). President Donald Trump issued forty-three in the first seven months of his first term (and
220 executive orders overall in his first term). President Joe Biden issued fifty-five orders in his
first seven months (and 162 executive orders overall in his first term). For comparison, President
Franklin D. Roosevelt issued 292 executive orders in the first seven months of his first term,
and 1,708 in total in his first term. All data derived from The American Presidency Project, U.C.
SANTA BARBARA, Executive Orders, https://www.presidency.ucsb.edu/statistics/data/executive-orders
[https://perma.cc/VR4E-MBYR].
71 See Alex Lemonides et al., Tracking the Lawsuits Against Trump’s Agenda, N.Y. TIMES
(Aug. 26, 2025, at 16:43 ET), https://www.nytimes.com/interactive/2025/us/trump-administrationlawsuits.html [https://perma.cc/BG3J-K6LM]; Litigation Tracker: Legal Challenges to Trump
Administration Actions, JUST SEC. (Aug. 1, 2025), https://www.justsecurity.org/107087/trackerlitigation-legal-challenges-trump-administration [https://perma.cc/RC3M-KAW9].
72 This figure counts all injunctive relief granted in one case as one injunction. See, e.g., Steve
Vladeck, 155. What District Court Critics Aren’t Telling You, ONE FIRST (June 2, 2025) (counting
97 cases), https://www.stevevladeck.com/p/155-what-critics-of-district-courts [https://perma.cc/
3FYV-6C4F]; Am. Fed’n of Gov’t Emps. v. U.S. Off. of Pers. Mgmt., No. 25-cv-1237, 2025 WL
1621714, at *34 (S.D.N.Y. June 9, 2025); Maryland v. Corp. for Nat’l & Cmty. Serv., 785 F. Supp.
3d 126–27 (D. Md. June 5, 2025); Nat’l Job Corps Ass’n v. Dep’t of Lab., No. 25-cv-04641, 2025
WL 1577843, at *1 (S.D.N.Y. June 4, 2025); Kingdom v. Trump, No. 25-cv-00691, 2025 WL
1568238, at *17 (D.D.C. June 3, 2025).
73 CASA, 145 S. Ct. at 2550 (noting twenty-five universal injunctions in first 100 days) (citing
JOANNA R. LAMPE, CONG. RSCH. SERV., R48476, NATIONWIDE INJUNCTIONS IN THE FIRST
HUNDRED DAYS OF THE SECOND TRUMP ADMINISTRATION 1 (May 16, 2025)).
74 See Melissa Quinn, Trump Finds New Target in Crusade Against Judges: Nationwide Injunctions, CBS NEWS (Mar. 22, 2025, at 7:00 ET), https://www.cbsnews.com/news/trump-injunctionnationwide-judges [https://perma.cc/8BW6-MGSH]. The attacks drew a rebuke from the Chief
Justice. Brian Bennett, Trump Calls for Judge in Deportations Case to Be Impeached, Drawing
Rare Rebuke From Roberts, TIME (Mar. 18, 2025, at 12:30 ET), https://time.com/7269156/trumpjudge-boasberg-impeach [https://perma.cc/QW94-E6UW].
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appeared to threaten defiance.75 The responses and threats were primarily directed toward the lower courts.76 But many believed they portended Supreme Court defiance as well.77
The Court during the period under study issued interim orders in
eighteen cases.78 Half of the interim orders concerned universal injunctions or other forms of universal relief by the lower courts.79 Every
interim order save one issued without oral argument and with relatively
scanty briefing.80 In seventeen of the eighteen cases, the government
sought interim relief. It received the requested relief in thirteen interim
orders, was denied requested relief in one, and received two mixed
decisions and one nondecision.81 In the one order that did not result
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
75 See Daniel Deacon & Leah Litman, Legalistic Noncompliance 75 DUKE L.J. (forthcoming
2026) (manuscript at 3), https://papers.ssrn.com/abstract=5241936 [https://perma.cc/PX89-JFNJ].
76 See supra note 74. By contrast, at the same time, the Trump Administration paid respect to
the Supreme Court, though several Justices worried about compliance with its decisions. See infra
section IV.C, pp. 121–24.
77 See supra note 10.
78 Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025); McMahon v. New York, 145 S. Ct. 2643, 2643
(2025) (mem.); Trump v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 2635, 2635 (2025); CASA, 145 S. Ct.
at 2548 (combining three applications); DHS v. D.V.D., 145 S. Ct. 2627, 2629 (2025); U.S. DOGE
Serv. v. CREW, 145 S. Ct. 1981, 1981 (2025); Soc. Sec. Admin. v. Am. Fed’n of State, Cnty., & Mun.
Emps., 145 S. Ct. 1626, 1626 (2025); Noem v. Doe, 145 S. Ct. 1524, 1524 (2025) (mem.); Trump v.
Wilcox, 145 S. Ct. 1415, 1416 (2025); Noem v. Nat’l TPS All., 145 S. Ct. 2728, 2728–29 (2025)
(mem.); A.A.R.P. v. Trump (A.A.R.P. II), 145 S. Ct. 1364, 1366 (2025) (per curiam); United States v.
Shilling, 145 S. Ct. 2695, 2695 (2025) (mem.); Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018 (2025);
U.S. Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 1914, 1914 (2025) (mem.); Trump
v. J.G.G., 145 S. Ct. 1003, 1005–06 (2025) (per curiam); Dep’t of Educ. v. California, 145 S. Ct. 966,
969 (2025) (per curiam); Bessent v. Dellinger, 145 S. Ct. 515, 515 (2025); Dep’t of State v. AIDS
Vaccine Advoc. Coal., 145 S. Ct. 753, 753 (2025).
79 See AIDS Vaccine, 145 S. Ct. at 753; Shilling, 145 S. Ct. at 2695; Am. Fed’n of State, Cnty.,
& Mun. Emps., 145 S. Ct. at 1626; CASA, 145 S. Ct. at 2548; Off. of Pers. Mgmt. v. Am. Fed’n of
Gov’t Emps., 145 S. Ct. at 1914; McMahon, 145 S. Ct. at 2643; Trump v. Am. Fed’n of Gov’t
Emps., 145 S. Ct. at 2635; Doe, 145 S. Ct. at 1524 (APA vacatur); see also LAMPE & DEAL, supra
note 36, at 4–8 (describing universal relief granted by district courts in each of these cases).
80 The exception is Trump v. CASA. See 145 S. Ct. at 2548–63.
81 The Administration received the relief it sought in every order listed in note 78 except for the
following. In AIDS Vaccine Advocacy Coalition, 145 S. Ct. 753 (2025), the Court denied the government’s application to vacate a disbursement order. Id. at 753. In Noem v. Abrego Garcia, 145
S. Ct. 1017 (2025), the Court “granted . . . and denied in part” the government’s application to vacate a district court order directing the government to “facilitate and effectuate the return of” petitioner Abrego Garcia, who was wrongfully removed from the United States. Id. at 1018 (quoting
Abrego Garcia v. Noem, No. 25-cv-00951, 2025 WL 1024654, at *1 (D. Md. Apr. 4, 2025)). The
Court gave each side a bit of what it wanted; this was a mixed decision. In J.G.G., the Court
granted the government’s application to vacate temporary restraining orders enjoining deportations
pursuant to the Alien Enemies Act and agreed with the government that habeas is the proper vehicle for these challenges. 145 S. Ct. at 1005–06. But the Court also specified that detainees get
significant notice in habeas in AEA cases. Id. at 1006. The government technically prevailed in its
application, but I treat the order as a mixed decision since the Court also ruled, importantly, that
habeas was available in the removal context despite a contrary suggestion in DHS v. Thuraissigiam,
140 S. Ct. 1959, 1964 (2020), and that the detainees get some AEA judicial review and must receive
serious notice. J.G.G., 145 S. Ct. at 1006. The nondecision came in Bessent v. Dellinger, 145 S. Ct.
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from a government application, private parties who lost below sought
injunctive relief against the government and prevailed.82 In sum, by my
count the government won thirteen, lost two, and had two mixed decisions and one nondecision.
C. Assessment
These interim orders, while not uniformly supportive of the Administration, allowed it to implement large chunks of its controversial program that will have a significant impact on government and individuals
no matter what the final resolution of the legal issues.
Some commentators, including some dissenting Justices, view the
Court as appeasing an executive branch stretching or breaking the law.83
These assessments turn on contested judgments about the probable correctness of the lower court orders, the harms suffered by the parties, and
the equities. And they attribute collective motives to the Justices that
are not verifiable. It simply isn’t possible at this point, based on this
data, to tease out whether the Court across these eighteen orders was
motivated by appeasement — or by self-protection, good faith, temporizing, impassivity, give and take, some combination, or something
else.84 The only thing one can conclude with certainty is that the Court
itself decided when and how to push back against the executive branch,
or not.
Any assessment of what the Justices are up to must, moreover, consider several complicating factors. The Court’s interim relief test favors
the government.85 Though less ideologically aligned with the Biden Administration than the second Trump Administration, it still granted
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
515 (2025), where the Court “held in abeyance” the government’s application to vacate the district
court order barring the President’s removal of Hampton Dellinger from the Office of Special Counsel, id. at 515, and later dismissed the case as moot after Dellinger dropped his appeal below. See
Bessent v. Dellinger, 145 S. Ct. 1326, 1326 (2025) (mem.).
82 See A.A.R.P. II, 145 S. Ct. at 1366.
83 See, e.g., Doe, 145 S. Ct. at 1528 (Jackson, J., dissenting from the grant of the application for
a stay); Steve Vladeck, Bonus 165: The Appeasement Thesis, ONE FIRST (July 10, 2025), https://
www.stevevladeck.com/p/bonus-165-the-appeasement-thesis [https://perma.cc/YV2B-EGHS]; Adam
Liptak, In Trump Cases, Supreme Court Retreats From Confrontation, N.Y. TIMES (Apr. 8, 2025),
https://www.nytimes.com/2025/04/08/us/supreme-court-trump-confrontation.html [https://perma.cc/
K849-RAZB].
84 On appeasement, see Vladeck, supra note 83. On self-protection, see Bradley & Siegel, supra
note 4, at 5–6. On good faith, see Jonathan H. Adler, Mistaking Principle for Appeasement, CIVITAS
INST. (July 29, 2025), https://www.civitasinstitute.org/research/mistaking-principle-for-appeasement
[https://perma.cc/7PWH-ELLY]. On temporizing, good faith, and impassivity, see Richard M. Re,
The Supreme Court, 2024 Term — Foreword: To a Conservative Warren Court, 139 HARV. L. REV.
1, 69–76 (2025). On give and take, see William Baude, Samuel L. Bray & Marin K. Levy, Remedies
for a Constitutional Crisis, 139 HARV. L. REV. (forthcoming 2026) (manuscript at 8–10), https://
ssrn.com/abstract=5543858 [https://perma.cc/426G-NAAS].
85 The Court treats the government as irreparably harmed whenever it cannot implement its
program. CASA, 145 S. Ct. at 2561; Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018); see HART
& WECHSLER, supra note 22, at 388 & n.5.
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interim relief to the former more often than not.86 Though the Court
has let many controversial Trump 2.0 initiatives proceed, it has not resolved a single presidential power question definitively. At least two
orders turned on venue rather than the merits.87 The Court pushed
back hard in three immigration cases important to the Administration.88
Several government wins involved removal of subordinate executive officials, where the Court has long supported executive power.89 The
CASA decision, examined below, also comported with prior majority
views and drew a notable separation of powers concession from the
Executive.90
Most importantly, recall that all but one order under study ruled on
a government application for interim relief. These applications came
prefiltered by the Solicitor General for an assessment of success. For
dozens of district court injunctions against the Trump Administration,
the government never applied to the Court for interim relief — either
because it never sought interim relief from the courts of appeals,91 or
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
86 Steve Vladeck, Bonus 157: Why the Supreme Court Keeps Granting Stays to President Trump,
ONE FIRST (June 12, 2025), https://www.stevevladeck.com/p/bonus-157-why-the-supreme-courtkeeps [https://perma.cc/43QL-GDRM]. In addition to being more ideologically aligned with the
Trump Administration, which is relevant to interim orders since they turn a good deal on the likelihood of success on the merits, see Bray, supra note 32, at 812, the Trump Administration’s actions
before the Court turned more than the Biden Administration’s on issues related to vertical executive
branch control, where this Court is especially likely to be sympathetic to executive power, see, e.g.,
Trump v. Wilcox, 145 S. Ct. 1415, 1416 (2025) (staying injunction against President Trump’s removal of NLRB and Merit Systems Protection Board (MSPB) officials).
87 Dep’t of Educ. v. California, 145 S. Ct. 966, 968–69 (2025) (per curiam); Trump v. J.G.G., 145
S. Ct. 1003, 1005–06 (2025) (per curiam). The venue ruling in Department of Education was consequential in sending many appropriation matters to the probably less plaintiff-friendly venue of
the Court of Claims. The venue ruling in J.G.G. has resulted in a shutdown to date of the government’s efforts to deport under the Alien Enemies Act.
88 The pushback was most obvious in A.A.R.P. II, 145 S. Ct. 1364, 1370 (2025) (per curiam), and
Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018–20 (2025), but a unanimous Court was also quite firm
in its due process ruling in J.G.G., 145 S. Ct. at 1005–06. The Court stayed injunctions against two
other immigration initiatives, see Doe, 145 S. Ct. at 1524; DHS v. D.V.D., 145 S. Ct. 2627, 2629
(2025), and issued a mixed result in J.G.G., 145 S. Ct. at 1005–06. For typical deference, see Trump
v. Hawaii, 138 S. Ct. 2392, 2408–09 (2018).
89 This influence was most obvious in the two presidential removals of agency officials, Wilcox,
145 S. Ct. at 1415; Trump v. Boyle, 145 S. Ct. 2653 (2025), and likely also informs the Court’s merits
assessment of other employee-termination issues, see Trump v. Am. Fed’n of Gov’t Emps., 145 S.
Ct. 2635 (2025); McMahon v. New York, 145 S. Ct. 2643, 2643 (2025) (mem.).
90 See infra section IV.C, pp. 121–24.
91 For injunctions issued before August 15, 2025, see, for example, League of United Latin Am.
Citizens v. Exec. Off. of the President, 780 F. Supp. 3d 135 (D.D.C. 2025); Nat’l Job Corps Ass’n v.
Dep’t of Lab., No. 25-cv-04641, 2025 WL 1752414 (S.D.N.Y. June 25, 2025); Metro. Transp. Auth.
v. Duffy, 784 F. Supp. 3d 624 (S.D.N.Y. 2025); NAACP v. U.S. Dep’t of Educ., 779 F. Supp. 3d 53
(D.D.C. 2025); Am. Fed’n of Gov’t Emps. v. Noem, 785 F. Supp. 3d 833 (W.D. Wash. 2025); Susman
Godfrey LLP v. Exec. Off. of President, No. 25-cv-1107, 2025 WL 1779830 (D.D.C. June 27, 2025);
A.B.A. v. U.S. DOJ, 783 F. Supp. 3d 236 (D.D.C. 2025); Smith v. Trump, No. 25-cv-00158, 2025
WL 2021785 (D. Me. July 18, 2025); Nat’l Educ. Ass’n v. U.S. Dep’t of Educ., 779 F. Supp. 3d 149
(D.N.H. 2025); Kingdom v. Trump, No. 25-cv-691, 2025 WL 1568238 (D.D.C. June 3, 2025);
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because it sought and was denied such relief and did not seek further
relief in the Supreme Court.92 Any assessment of the Administration’s
win-loss record in the Supreme Court must keep this important fact in
mind.
III. THE VERTICAL DIMENSION: 2025 INTERIM ORDERS
AND THE LOWER FEDERAL COURTS
By contrast with the Court’s interim order record at the horizontal
level, it is not hard to interpret the vertical dimension of these orders.
The Court innovated to enhance its vertical control over lower federal
courts. The innovations came primarily in two contexts: the vertical
effect of interim orders, and the Court’s ability to intervene earlier than
ever in issuing these orders.
A. Reason-Giving and Vertical Precedent
In addition to its massive discretion whether to grant or deny an
interim order, the Court can decide whether to give reasons or other
guidance when granting or denying interim relief. At least six of the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Washington v. U.S. Dep’t of Transp., No. 25-cv-00848, 2025 WL 1742893 (W.D. Wash. June 24,
2025); Am. Oversight v. Hegseth, No. 25-cv-883, 2025 WL 1721995 (D.D.C. June 20, 2025); California v. U.S. Dep’t of Transp., No. 25-cv-208, 2025 WL 1711531 (D.R.I. June 19, 2025); California
v. Trump, No. 25-cv-10810, 2025 WL 1667949 (D. Mass. June 13, 2025); New York v. Kennedy, No.
25-cv-196, 2025 WL 1803260 (D.R.I. July 1, 2025); Ass’n of Am. Univs. v. Dep’t of Def., No. 25-cv11740, 2025 WL 2022628 (D. Mass. July 18, 2025); Barbara v. Trump, No. 25-cv-244, 2025 WL
1904338 (D.N.H. July 10, 2025); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of President, 784 F. Supp. 3d 127 (D.D.C. 2025), amended, 2025 WL 2105262 (D.D.C. June 26, 2025); President & Fellows of Harvard Coll. v. U.S. DHS, No. 25-cv-11472, 2025 WL 1737493 (D. Mass. June
23, 2025); New York v. Trump, 767 F. Supp. 3d 44 (S.D.N.Y. 2025); Victim Rts. L. Ctr. v. U.S. Dep’t
of Educ., No. 25-cv-11042, 2025 WL 1704311 (D. Mass. June 18, 2025); Am. Fed’n of Gov’t Emps.
v. U.S. Off. of Pers. Mgmt., No. 25-cv-1237, 2025 WL 1621714 (S.D.N.Y. June 9, 2025); Valuta
Corp. v. Fin. Crimes Enf’t Network, No. 25-cv-00191, 2025 WL 2389430 (W.D. Tex. June 24, 2025);
CASA, Inc. v. Trump, No. 25-cv-201, 2025 WL 2257625 (D. Md. Aug. 7, 2025); N.H. Indonesian
Cmty. Support v. Trump, 765 F. Supp. 3d 102 (D.N.H. 2025). Relatedly, the Trump Administration
also did not seek interim relief in a number of district court decisions involving vacatur of agency
action. See, e.g., Las Ams. Immigrant Advoc. Ctr. v. DHS, 783 F. Supp. 3d 200 (D.D.C. 2025),
reconsideration denied, No. 24-cv-1702, 2025 WL 2105564 (D.D.C. July 28, 2025); Am. Fed’n of
Tchrs. v. Dep’t of Educ., 779 F. Supp. 3d 584 (D. Md. 2025); Drs. for Am. v. Off. of Pers. Mgmt.,
No. 25-cv-322, 2025 WL 1836009 (D.D.C. July 3, 2025); Refugee and Immigrant Ctr. for Educ. &
Legal Servs. v. Noem, No. 25-cv-306, 2025 WL 1825431 (D.D.C. July 2, 2025). There are many
more qualifying injunctions during this period, but I have tried to exclude the injunctions that
might plausibly be controlled by vertical stare decisis via a Supreme Court interim order, see infra
pp. 106–07, or injunctions issued within the weeks prior to August 15 for which the government
might seek interim relief after that date.
92 For injunctions issued before August 15, 2025, see, for example, Pacito v. Trump, No. 25-cv1313, 2025 WL 1325305 (9th Cir. Mar. 25, 2025), opinion clarified, 2025 WL 1325306 (9th Cir. Apr.
21, 2025); Aviel v. Gor, No. 25-cv-5105, 2025 WL 1600446 (D.C. Cir. June 5, 2025); New York v.
Trump, 133 F.4th 51 (1st Cir. 2025); Washington v. Trump, 145 F.4th 1013 (9th Cir. 2025); Am. Pub.
Health Ass’n v. Nat’l Insts. of Health, 145 F.4th 39 (1st Cir. 2025); Widakuswara v. Lake, No. 25cv-5144, 2025 WL 1521355 (D.C. Cir. May 28, 2025); New York v. U.S. Dep’t of Educ., No. 25-cv1424 (2d Cir. June 20, 2025); Abrego Garcia v. Noem, No. 25-cv-1404, 2025 WL 1135112 (4th Cir.
Apr. 17, 2025).
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THE SUPREME COURT — ESSAY
103
eighteen interim orders under study announced the grant or denial of
interim relief without further explanation, yet with important mediumterm consequences for presidential power and individual liberties.93 But
sometimes the Court chooses to explain itself within the order or in a
per curiam opinion related to the order.94 And in one order under study,
CASA, the Court issued a twenty-six-page signed opinion accompanied
by eighty-seven pages of separate opinions.95
Because so many interim orders lack accompanying explanation, the
Court must have some reason to explain. One reason might be to convince the public or some other audience that the Court properly applied
the standard for interim relief. But this cannot be a complete or even a
primary reason. The Court is often silent on how it applies the interimorder test, even in the face of a fierce dissent challenging the application.96 And many interim orders offer only very brief, conclusory, and
largely unilluminating accounts for how the Court applied the test.97
Another reason to explain is to give case-specific guidance on how
the lower courts must implement the interim order or how the executive
branch must comply.98 Other times, the Court signals broader noncase-specific legal views to the executive branch.99 But the main general
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
93 See, e.g., Noem v. Nat’l TPS All., 145 S. Ct. 2728, 2728–29 (2025) (mem.) (staying a district
court order with effect of rendering deportable during pendency of litigation hundreds of thousands
of Venezuelan citizens living in the United States); United States v. Shilling, 145 S. Ct. 2695, 2695
(2025) (mem.) (staying district court injunction with effect of allowing Trump Administration during
pendency of litigation to prohibit transgender people from serving in the U.S. military); Doe, 145 S.
Ct. at 1524 (staying district court order with effect of allowing the government during pendency of
litigating to revoke parole and work authorizations that the government had previously granted to
noncitizens from four countries); A.A.R.P. v. Trump (A.A.R.P. I), 145 S. Ct. 1034, 1034, (2025) (mem.)
(directing government not to remove any member of putative class of Alien Enemies Act detainees
from the United States pending further ruling); McMahon, 145 S. Ct. at 2643 (staying injunction to
reinstate nearly 2,000 Department of Education employees during pendency of litigation); Soc. Sec.
Admin. v. Am. Fed’n of State, Cnty., & Mun. Emps., 145 S. Ct. 1626, 1626 (2025) (staying district
court injunction that blocked Department of Government Efficiency from accessing Social Security
Administration record systems during pendency of litigation).
94 On the former, see, for example, Trump v.Am. Fed’n of Gov’t Emps., 145 S. Ct. at 2635. On
the latter, see, for example, Dep’t of Educ. v. California, 145 S. Ct. 966, 968–69 (2025).
95 See Trump v. CASA, Inc., No. 24-884 (U.S. June 27, 2025), https://www.supremecourt.gov/
opinions/24pdf/24a884_8n59.pdf [https://perma.cc/F3VE-NZUR].
96 See, e.g., Doe, 145 S. Ct. at 1524; DHS v. D.V.D., 145 S. Ct. 2627, 2629–30 (2025); McMahon,
145 S. Ct. at 2643.
97 See, e.g., Trump v.Am. Fed’n of Gov’t Emps., 145 S. Ct. at 2635; Noem v. Abrego Garcia,
145 S. Ct. 1017, 1018–20 (2025).
98 See, e.g., Dep’t of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753, 753 (2025); Abrego
Garcia, 145 S. Ct. at 1018; U.S. DOGE Serv. v. CREW, 145 S. Ct. 1981, 1982 (2025).
99 The clearest example is Trump v. Wilcox, 145 S. Ct. 1415 (2025), where the Court stayed two
lower court orders that enjoined the President from removing members of multimember federal
agencies. Id. at 1416. After a brief, cryptic explanation for the stays, the Court added a paragraph
disclaiming that the case implicated the constitutionality of for-cause removal protections enjoyed
by the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee. Id. at 1417. The Court appeared to send the message that the President should not treat
the interim order as a green light to disregard for-cause removal protections at the Federal Reserve.
Id.
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impact of the Court’s legal reason-giving for interim orders is to direct
lower courts about the non-case-specific state of the law that governs
interim orders in analogous cases. In other words, legal explanations
clarify the vertical impact of the orders.
Before last Term, the vertical precedential impact of interim orders
had been unsettled.100 Such orders are not “ruling[s] on the merits.”101
And the Court can (though rarely does) change its mind if it later addresses the merits.102 The Supreme Court has occasionally treated its
interim orders as vertically binding.103 But it had never clearly explained the scope of the vertical impact.104 Perhaps as a result of this
uncertainty, several lower federal courts had viewed Supreme Court interim orders as lacking binding impact on their own interim order assessments in related cases.105 The Court rejected this view in Trump v.
Boyle.106
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
100 A good overview is in McFadden & Kapoor, supra note 24. For a deeper, more recent dive
into the problem, see generally Bert I. Huang, The Foreshadow Docket, 124 COLUM. L. REV. 851
(2024) (reviewing PHILOSOPHICAL FOUNDATIONS OF PRECEDENT (Timothy Enicott et al. eds.,
2023)) (analyzing the complexities of a lower court divining the requirements of a Supreme Court
interim order for its own interim orders analysis). Professor Josh Blackman has noted that the
Court in the past sometimes treated interim orders as precedential and sometimes did not. See Josh
Blackman, The Precedential Value of Shadow Docket Cases, REASON: VOLOKH CONSPIRACY
(July 6, 2022, at 02:47 ET), https://reason.com/volokh/2022/07/06/the-precedential-value-of-shadowdocket-cases [https://perma.cc/EU2N-7E22].
101 Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (Kavanaugh, J., concurring in grant of applications for stays); see also Ritter v. Migliorii, 142 S. Ct. 1824, 1824 (2022) (Alito, J., dissenting from
the denial of the application for stay).
102 McFadden & Kapoor, supra note 24, at 871. Note that between 2015 and August 2020,
“[e]xcept in the death penalty context, stay grants issued by the full Court forecasted the eventual
merits decision in every instance that the Court went on to rule on the merits.” Id. (emphasis
omitted). For rare counterexamples, see Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023), and United
States v. Texas, 143 S. Ct. 1964, 1976 (2023).
103 See Tandon v. Newsom, 141 S. Ct. 1294, 1296–97 (2021) (per curiam) (citing, inter alia, S. Bay
United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718–20 (2021)) (issuing writ of injunction
against state limit on certain religious gatherings in reliance on a few reasoned interim orders as
well as an interim order of injunction that lacked legal analysis). For another case that said that
the injunction was “clearly dictated” by the unreasoned order in South Bay, see Gateway City
Church v. Newsom, 141 S. Ct. 1460, 1460 (2021). See also McFadden & Kapoor, supra note 24, at
834 (noting the large impact in lower courts of the interim order in Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 65 (2020) (per curiam)); id. (noting that the Court’s orders granting, vacating, and remanding in light of interim orders, like Diocese of Brooklyn, suggest that it
believes interim order rulings have vertical authority); id. at 835 (noting that “lengthy and strongly
worded concurrences and dissents [would not] be warranted if the emergency relief granted” lacked
precedential impact). On this point, see generally VLADECK, supra note 35, ch. 5.
104 See McFadden & Kapoor, supra note 24, at 830 (noting paucity of explanation by judiciary
about “possible precedential effects of Supreme Court stays”).
105 See, e.g., Nat’l TPS All. v. Noem, No. 25-cv-05687, 2025 WL 2233985, at *19 (N.D. Cal. July
31, 2025); Maine v. U.S. Dep’t of Agric., 778 F. Supp. 3d 200, 225 n.8 (D. Me. 2025); Rhode Island
v. Trump, 781 F. Supp. 3d 25, 40 (D.R.I. 2025); Massachusetts v. Kennedy, No. 25-cv-10814, 2025
WL 1371785, at *3 (D. Mass. May 12, 2025).
106 145 S. Ct. 2653 (2025); id. at 2654.
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THE SUPREME COURT — ESSAY
105
Boyle involved the presidential removal without cause of members
of the Consumer Product Safety Commission.107 The district court enjoined the removal and the court of appeals declined to issue a stay.108
The Supreme Court stayed the injunction and said the matter was
“squarely controlled” by its earlier interim order in Trump v. Wilcox.109
That order had stayed district court injunctions of presidential removals
of two officials on two other multimember independent agencies.110 The
Boyle order added without citation or further explanation: “Although
our interim orders are not conclusive as to the merits, they inform how
a court should exercise its equitable discretion in like cases.”111 The
Court then stated that the Consumer Product Safety Commission exercises executive power in a similar manner to the agencies at issue in
Wilcox, that the government faced a greater risk of harm than the removed officer, just as in Wilcox, and that “the case does not otherwise
differ from Wilcox in any pertinent respect.”112
The Boyle order established, at a minimum, that lower federal courts
must treat the skimpiest of legal explanation, analysis, and conclusion
in Supreme Court interim orders as “controll[ing]” when lower courts
exercise “equitable discretion” in ruling on interim relief.113 This is in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
107 Id. at 2655 (Kagan, J., dissenting from the grant of the application for stay).
108 The district court sought to distinguish Wilcox, Boyle v. Trump, No. 25-cv-1628, 2025 WL
1677099, at *14 n.11 (D. Md. June 13, 2025), and one Fourth Circuit judge who wrote in support of
the stay denial sought to distinguish Wilcox and suggested it was not vertically binding in any event.
Boyle v. Trump, No. 25-cv-1687, 2025 WL 1808180, at *2 (4th Cir. July 1, 2025) (Wynn, J., concurring).
109 145 S. Ct. 1415 (2025).
110 Boyle, 145 S. Ct. at 2654 (citing Wilcox, 145 S. Ct. at 1416). The Wilcox Court gave two brief
reasons. First, the Government was likely to show that these agencies “exercise considerable executive power,” which was relevant because the Court had previously ruled that the President could
remove executive officers subject to narrow exceptions. Wilcox, 145 S. Ct. at 1416. As the dissent
noted, this explanation did not quite address the likelihood of success on the merits. Id. at 1419
(Kagan, J., dissenting from the grant of the application for stay). Second, “the Government faces
greater risk of harm from an order allowing a removed officer to continue exercising the executive
power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
Id. at 1416–17 (majority opinion). The Court concluded from this point that the stay was “appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during
the pendency of this litigation.” Id. at 1417.
111 Boyle, 145 S. Ct. at 2654. In an opinion in a 2025 interim order outside the period under
study, Justice Gorsuch, joined by Justice Kavanaugh, relied in part on Boyle to maintain that the
“reasoning” in an interim order “binds lower courts as a matter of vertical stare decisis,” and that
“even probabilistic holdings” such as likelihood of success “must ‘inform how a [lower] court’ proceeds ‘in like cases.’” Nat’l Insts. of Health v. Am. Pub. Health Ass’n, No. 25A103, 2025 WL
2415669, at *4 (U.S. Aug. 21, 2025) (Gorsuch, J., concurring in part and dissenting in part) (alteration
in original) (quoting Boyle, 145 S. Ct. at 2654).
112 Boyle, 145 S. Ct. at 2654.
113 Id. Boyle is cryptic but could additionally imply that the legal analysis in an interim order is
vertically binding whenever a lower court exercises “equitable discretion,” including for final injunctive relief. Id. In addition, while Boyle at a minimum appears to make the Court’s interim
orders binding, the Court also stated that such orders are “not conclusive as to the merits.” Id.
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effect a vertical stare decisis rule for each discernible element of the
interim order test. The justification for the rule is uncertain, but so too
is the justification for vertical stare decisis of merits decisions.114 The
Court might have the authority to impose its will on lower courts due to
some structural hierarchical principle growing out of Article III.115 But
at a minimum the Court’s authority flows simply from the statutes and
residual inherent authority that enable it to ensure vertical compliance,
as in Boyle, through interim relief orders, and, if needed, with a writ of
mandamus.116
Boyle clarified and amplified the vertical influence of interim orders.117 It enabled the Court to quickly bridge the gap between its view
of the law and lower courts’ view of the law, since the Court can influence a wide swath of lower court decisionmaking with a single order.
In judicial review of executive power, the Boyle rule means the Court
can quickly impose presumptive legal uniformity across a number of
cases addressing the legality of presidential programs during the crucial
period before final adjudication, and can more quickly respond to executive power challenges during this interim period on behalf of the entire
federal judiciary. In this respect, it could, all things equal, slow the
demand for Supreme Court interim orders.
This form of vertical control underscores the significance of the
Court’s decision whether to explain interim orders, and with what
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
This appears to mean, for example, that a lower court addressing a presidential removal issue
should award initial interim relief in accordance with Boyle (and Wilcox, which it construed); should
award final judgment to the party challenging removal to the extent the judgment is controlled by
what is left of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), a still-binding precedent
until overruled; but should stay any injunctive or other remedial relief that may be appropriate
pending appeal (because that’s the interim status quo dictated by Supreme Court precedent). See
Huang, supra note 100, at 868–78 (proposing similar analysis but maintaining that district court’s
initial preliminary relief — before its own merits ruling — need not always match the Supreme
Court’s interim order in the parallel case).
114 On the various theories, see Evan H. Caminker, Why Must Inferior Courts Obey Superior
Court Precedents?, 46 STAN. L. REV. 817, 821–22 (1994); Richard M. Re, Narrowing Supreme Court
Precedent from Below, 104 GEO. L.J. 921, 925–26 (2016).
115 See Re, supra note 114, at 936 & n.7; see also Hutto v. Davis, 454 U.S. 370, 375 (1982) (suggesting that the lower court duty to follow Supreme Court “precedent” follows from “the hierarchy
of the federal court system created by the Constitution and Congress”).
116 See supra notes 18–20; see also DHS v. D.V.D., 145 S. Ct. 2627, 2629–30 (2025) (clarifying
interim order staying injunction that district court seemed to defy on remand, and holding open the
possibility of mandamus relief).
117 It is important to note that reason-giving in interim orders can also indicate what the Court
is not deciding, even preliminarily, and thus can cabin the vertical impact of the order. An applicant
typically offers several independent grounds for interim relief — for example, lack of standing, improper venue, impermissible remedy, or likely success on the merits. If the Court grants relief based
on one ground, it signals to the government, lower courts, and litigants that it is not (or not yet)
endorsing the others, allowing percolation on those issues to continue. For examples during the
study period where the Court’s language clarified the limits of its decision, see Trump v. Am. Fed’n
of Gov’t Emps., 145 S. Ct. 2635, 2635 (2025) (mem.); Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t Emps.,
145 S. Ct. 1914, 1914 (2025) (mem.); and Noem v. Nat’l TPS All., 145 S. Ct. 2728, 2728–29 (2025)
(mem.).
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THE SUPREME COURT — ESSAY
107
length and clarity. This is the central normative issue raised by these
orders. The Court “must grant or deny” the applications presented to it
in accordance with the standards for interim relief.118 But with each
order, it faces a discretionary decision about whether and how to explain
the order.119 The argument for some explanation, and at times for significant explanation, is that the Court can legitimate an order’s important consequences only by showing how it accords with law.120
But there are counterpoints. One is that legal explanation has never
been a criterion of legitimacy on the Court. In other contexts the Court
has often made very consequential decisions without explanation.121
Another is that cursory reason-giving for interim orders might distort
the Justices’ assessment of the final merits if and when they reach
them.122 Finally, the more elaborate the reasoning and explanation,
especially about the likelihood of success, the bigger the vertical impact.123 An unexplained order can in context inform lower court
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118 CASA, 145 S. Ct. at 2570 & n.4 (Kavanaugh, J., concurring) (emphasis added). The Court’s
view on how these standards apply, whether it allows the relief issued below to prevail, and how
much non-uniformity it permits might differ based on whether the interim order below involves
universal relief in a case involving the government. See id. at 2571 (arguing that the Court should
usually set a nationally uniform rule on the default interim law in a case involving the government
even when the courts below do not issue universal relief).
119 A secondarily important normative question is whether and when the Court should amplify
the briefing, order oral argument, alter the question presented, or grant certiorari before judgment
in an effort to better inform itself before decision. These decisions are typically unexplained.
120 See, e.g., Trump v. Boyle, 145 S. Ct. 2653, 2656 (2025) (Kagan, J., dissenting from the grant
of the application for stay) (criticizing paucity of explanation in interim orders); Justice Kagan
at 2025 Ninth Circuit Judicial Conference, C-SPAN, at 36:08–36:20 (July 24, 2025), https://
www.c-span.org/program/public-affairs-event/justice-kagan-at-2025-ninth-circuit-judicial-conference/
662701 [https://perma.cc/MX4M-HMAH] (Justice Kagan states that “as we have done more and
more on this emergency docket there becomes a real responsibility, that I think we didn’t recognize
when we first started down this road, to explain things better.”); Steve Vladeck, Bonus 161: Why
the Court Needs to Explain Itself, ONE FIRST (June 26, 2025), http://stevevladeck.com/p/bonus161-why-the-court-needs-to [https://perma.cc/SZY7-HZ9J].
121 See VLADECK, supra note 35, at 92 (explaining how Court’s denials of certiorari without
explanation “legalized same-sex marriage” in many states before Obergefell v. Hodges, 576 U.S. 644
(2015)); Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After
the Judges’ Bill, 100 COLUM. L. REV. 1643, 1737 (2000) (concluding after lengthy review of the
history and operation of (typically unexplained) certiorari decisions that “the Supreme Court’s
power to set its agenda may be more important than what the Court decides on the merits”); Henry
Paul Monaghan, Essay, On Avoiding Avoidance, Agenda Control, and Related Matters, 112
COLUM. L. REV. 665, 689–93 (2012) (explaining importance of other unexplained agenda decisions,
including limiting grants of review, rewriting questions, adding questions presented, and appointing
amici); HART & WECHSLER, supra note 22, at 329–30 (describing summary dismissals of mandatory appeals treated as a decision entitled to some stare decisis effect); id. at 341 (noting Warren
Court practice of granting certiorari and reversing summarily on the merits “with no more than a
citation or two of explanation”).
122 See Samuel L. Bray, Professor of L., Notre Dame L. Sch., Written Testimony Before the
Presidential Commission on the Supreme Court of the United States: Case Selection and Review at
the Supreme Court 14–15 (June 30, 2021), https://ssrn.com/abstract=3875807 [https://perma.cc/L5D55F42].
123 See Labrador v. Poe, 144 S. Ct. 921, 933–34 (2024) (Kavanaugh, J., concurring in the grant of
stay).
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decisionmaking.124 But not as readily as one that has legal explanation.125 When the Court writes down its assessment of the equities, the
harms, and especially the likelihood of success on the merits, it sends
much more information about its thinking, which is then controlling in
analogous lower court cases.
Like everything else in connection with interim orders, there is no
escaping these tensions, which can only be managed contextually.
B. Timing
Another important element of the Court’s discretion is its control
over timing for resolving interim orders. This control comes up in a few
dimensions.
The first is how quickly the Court acts on an application.126 In the
Venezuelan-deportation matter, the Court acted just a few hours after
receiving an application and prior to a government response.127 But
often the Court takes its time, sometimes seemingly strategically. It for
weeks held “in abeyance” (did not rule on) a government application to
vacate the district court’s refusal to allow the President to remove the
head of the Office of Special Counsel, during which time the court of
appeals stayed the district court order, thus eliminating the need for the
Court to act.128 And it delayed a decision in CASA for more than three
months even though it eventually ruled that the universal injunction the
government was subject to during that period was unlawful.129
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124 See supra note 103.
125 Because it can be difficult to know the reasons for such an order — was it a ruling on likeli-
hood of success, and why?; irreparable harm?; balance of equities? — it can be unclear how lower
courts should be “informed” by the order absent further context.
126 The median decision time for OT 2024 Trump-related applications was eighteen days with a
range from one-day disposition to 106 days. These applications have been compiled in order of
disposition time in Appendix II. See Appendix, supra note 46, at 2. This is a small sample and a
subset of all noncapital applications from OT 2024, but it is not wildly out of line with the time for
action on such orders over the past few decades. Goelzhauser, supra note 17, at 145.
127 See A.A.R.P. II, 145 S. Ct. 1364, 1366–67 (2025).
128 See Bessent v. Dellinger, 145 S. Ct. 515, 515 (2025) (order holding application in abeyance);
Dellinger v. Bessent, No. 25-5052, 2025 WL 717383, at *1 (D.C. Cir. Mar. 5, 2025) (appellate court
order granting stay pending appeal); Bessent v. Dellinger, 145 S. Ct. 1326, 1327 (2025) (March
6 denial of application on ground of mootness). See generally Jack Goldsmith, Supreme Court
Temporizing over Trump 2.0 Emergency Orders, EXEC. FUNCTIONS (Mar. 6, 2025), https://
executivefunctions.substack.com/p/supreme-court-temporizing-over-trump [https://perma.cc/468ZKXX5].
129 CASA, 145 S. Ct. at 2540. Compared to other applications under study, the Court notably
took its time in responding to the CASA application. After the government applied for stays on
March 13, the Chief Justice gave plaintiffs three weeks to respond, then considered the application
over a month after it was filed, ordered oral argument to be set a month later, and then the Court
decided the case and issued a stay on June 27. See No. 24A884, SUPREME COURT OF THE
UNITED STATES, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/
public/24a884.html [https://perma.cc/D23Y-BQHT]. It may have done so to be more deliberative
on such an important issue as universal injunctions, as indicated by the decision to hold oral argument and the lengthy opinion.
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THE SUPREME COURT — ESSAY
109
The second dimension is how early in a case the Court can issue an
interim order. Last Term, the Court clarified its discretion to act very
early in the case.
One mechanism for early intervention is to treat a temporary restraining order (TRO) as a preliminary injunction. Several universal
injunction cases against the Trump Administration involved TROs,
which can last up to twenty-eight days.130 Before 2025, the “established”
wisdom was that TROs “are ordinarily not appealable” to the courts of
appeals and thus to the Supreme Court.131 The government claimed
that some district courts were exploiting this window to shield controversial decisions from appellate interim review.132 But the conventional
wisdom on appealability was always hard to square with the text of 28
U.S.C. § 1292(a)(1).133 And there was long an inchoate exception for
TROs that had the “practical effect” of granting or denying an injunction.134 The Court in two Trump-related interim orders exploited this
exception with minimal explanation to treat recently issued TROs as
appealable orders.135 The Court has clearly broadened the circumstances under which a TRO may be construed as a preliminary injunction, especially for cases involving orders halting a presidential program,
but the limits of this rule remain uncertain.
A different mechanism underscores how early in the case the Court
can issue an interim order. The Court has jurisdiction to grant certiorari
once a district court decision is “in the court of appeals.”136 But the
Court can enjoin an action earlier if the injunction or stay is “in aid of
[its] jurisdiction[]” under the All Writs Act.137 The Court in 1943 ruled
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130 FED. R. CIV. P. 65(b) (stating that TROs last no more than fourteen days but can be once
renewed).
131 Tyler B. Lindley, Morgan Bronson & Wesley White, Appealing Temporary Restraining Orders,
77 FLA. L. REV. 973, 975 (2025) (quoting Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t Emps., 473
U.S. 1301, 1303–04 (1985)); see also 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3922.1 (3d ed. 2025).
132 See, e.g., Application to Vacate at 31–32, Bessent, 145 S. Ct. at 515 (No. 24A790); Application
to Vacate at 22–23, U.S. Dep’t of Educ. v. California, 145 S. Ct. 966 (2025) (No. 24A910); Application to Vacate at 33–34, Trump v. J.G.G., 145 S. Ct. 1003 (2025) (No. 24A931).
133 See Lindley, Bronson & White, supra note 131, at 975. “Section 1292(a)(1) grants a right of
immediate appeal to circuit courts of appeals from all ‘[i]nterlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions,’”
and a TRO is a type of injunction. Id. (alterations in original) (emphasis added) (quoting 28 U.S.C.
§ 1292(a)(1)).
134 Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974) (quoting Pan Am. World Airways, Inc. v.
Flight Eng’rs’ Int’l Ass’n, PAA Chapter, AFL-CIO, 306 F.2d 840, 843 (2d Cir. 1962)). In Nixon v.
Fitzgerald, 457 U.S. 731 (1982), the Court held that a denial of presidential immunity was an appealable collateral order and thus “in” the court of appeals for purposes of Supreme Court jurisdiction under 28 U.S.C. § 1254 because it involved a “serious and unsettled” issue involving “a
threatened breach of essential Presidential prerogatives under the separation of powers.” Id. at 743
(citing United States v. Nixon, 418 U.S. 683, 691–92 (1974)); see also Lindley, Bronson & White,
supra note 131, at 988–93 (reviewing modern case law relating to the appealability of TROs).
135 See J.G.G., 145 S. Ct. at 1005; Dep’t of Educ., 145 S. Ct. at 968.
136 28 U.S.C. § 2101(e); see United States v. Nixon, 418 U.S. at 690–92.
137 § 1651.
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that the All Writs Act authorized it to issue a writ of mandamus (or writ
of prohibition) to the district court without any application to or ruling
by a federal court of appeals, as long as the Court had ultimate appellate
jurisdiction under Article III and via certiorari if a case were to be filed
in the court of appeals.138 Since the All Writs Act is the sole basis for
injunctive relief, the same conclusion applies to injunctions.139
This appears to be the logic behind the Court’s injunction in A.A.R.P.
v. Trump.140 A putative class of detainees sought “an emergency TRO”
to stop imminent removal under the Alien Enemies Act (AEA).141 After
fourteen-and-a-half hours without a ruling, plaintiffs appealed “the constructive denia[l]” and, before the Fifth Circuit ruled, sought interim
relief in the Supreme Court.142 The Court, citing the All Writs Act,
barred removal of the detainees “until further order.”143 A later order
invoked the All Writs Act to justify “injunctive relief to prevent irreparable harm . . . and . . . preserve [the Court’s] jurisdiction.”144 The
Court appeared to treat the district court’s inaction as a denial of the
TRO.145 It had to conclude that the district court decided something to
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138 See Ex parte Republic of Peru, 318 U.S. 578, 582–85 (1943) (quoting Ex parte United States,
287 U.S. 241, 248–49 (1932)) (order to show cause made clear that application for mandamus or
prohibition was not presented to court of appeals); see also Ex parte United States, 287 U.S. at 246
(“[E]ven if the appellate jurisdiction of this court could not in any view be immediately and directly
invoked, the issue of the writ may rest upon the ultimate power which we have to review the case
itself by certiorari to the circuit court of appeals in which such immediate and direct appellate
jurisdiction is lodged.”); id. at 248 (“[T]his court has full power in its discretion to issue the writ of
mandamus to a federal district court, although the case be one in respect of which direct appellate
jurisdiction is vested in the circuit court of appeals — this court having ultimate discretionary jurisdiction by certiorari . . . .”); Stephen I. Vladeck, A Court of First View, 138 HARV. L. REV. 533,
564 (2024) (“It seems beyond question that the Supreme Court is exercising constitutional appellate
jurisdiction even when it reaches the merits on appeal from a district court’s grant or denial of a
preliminary injunction, and even when the case has bypassed the court of appeals.”).
139 I believe the same logic applies to stays, but the matter is more complicated. See infra note
148.
140 145 S. Ct. 1034 (2025) (mem.).
141 A.A.R.P. II, 145 S. Ct. 1364, 1364 (2025) (per curiam).
142 Id. The Fifth Circuit would later say that it lacked appellate jurisdiction at that point.
A.A.R.P. v. Trump, No. 25-10534, 2025 WL 1148141, at *1 (5th Cir. Apr. 18, 2025) (per curiam),
cert. granted, judgment vacated, 145 S. Ct. 1364 (2025) (order denying plaintiffs’ motion for temporary administrative stay and injunction pending appeal).
143 A.A.R.P. I, 145 S. Ct. at 1034.
144 A.A.R.P. II, 145 S. Ct. at 1369.
145 The Court deemed the “relevant” jurisdictional issue to be whether “the District Court’s inaction had the effect of refusing an injunction.” Id. It did not explain why this was relevant to
jurisdiction, but it was at a minimum relevant to the Article III question explained in the next
footnote and accompanying text. The Court in supporting its jurisdiction did not mention the court
of appeals or § 1254 and seemed to implicitly reject their relevance. See id. (stating that “[n]ow that
the Fifth Circuit has ruled” — long after the original injunction — “our certiorari jurisdiction also
supports review in the ordinary course” (emphases added)).
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111
establish its Article III appellate jurisdiction.146 On this basis, the Court
enjoined the government in aid of its jurisdiction.147
In short, the Court has authority under the All Writs Act to enjoin a
party (or to vacate an injunction) as early as the same day the case is
filed in the district court, before either court below rules on the plaintiff’s request for injunctive relief, as soon as it determines that the district court has denied (or even constructively denied) a TRO.148 The
Court will rarely exercise this extraordinary authority.149 But it exists
when needed.
C. Interim Orders and the “Unitary” Judiciary
Unitary executive theorists maintain that the federal executive
branch is unitary and the federal judiciary is plural.150 On this view, all
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146 Compare Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807) (Court had Article III appellate
jurisdiction because it is asked to “revis[e] . . . a decision of an inferior court”), with Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 175 (1803) (Court not exercising Article III appellate jurisdiction
because it was not asked to “revise[] and correct[] the proceedings in a cause already instituted”).
See also HART & WECHSLER, supra note 22, at 363–64 (explaining why Court’s Article III appellate jurisdiction turns on whether it is revising a decision of an inferior court). Bollman found the
appellate jurisdiction requirement satisfied by a lower court order denying bail and ordering petitioners imprisoned. 8 U.S. (4 Cranch) at 75–76, 101; see also Ex parte Yerger, 75 U.S. (8 Wall.) 85,
89 (1869) (requirement satisfied by lower court dismissal of petition for a writ of habeas corpus).
After A.A.R.P. II, constructive denials of a TRO application count as a “decision” for these purposes.
For another relatively recent example of the Court requiring only a whisper of a decision by a court
below before exercising its interim orders power under the All Writs Act, see National Federation
of Independent Business v. Department of Labor, 142 S. Ct. 661, 664 (2022) (per curiam), in which
the only decisions by the Sixth Circuit below were the denial of a petition for initial hearing en banc
following consolidation and the Sixth Circuit’s dissolution of the stay of the agency order by another
circuit, see Vladeck, supra note 138, at 552–54.
147 Justice Alito speculated that the Court had relied on 28 U.S.C. § 1254, which allows review
of “[c]ases in the courts of appeals.” A.A.R.P. I, 145 S. Ct. at 1034–35 (Alito, J., dissenting) (alteration
in original) (quoting § 1254). I doubt this is so. See supra note 145.
148 It is a more complex question whether the Court could stay a district court TRO that was not
appealable. Nken v. Holder, 556 U.S. 418 (2009), might be read to suggest that the ability to issue
a stay is tied to the pendency of an appeal. Id. at 426 (noting that “[a]n appellate court’s power to
hold an order in abeyance while it assesses the legality of the order has been described as ‘inherent,’
preserved in the grant of authority to federal courts” in the All Writs Act (quoting In re McKenzie,
180 U.S. 536, 551 (1901))). Nken also says that a stay “has some functional overlap with an injunction” and that “[b]oth can have the practical effect of preventing some action before the legality of
that action has been conclusively determined.” Id. at 428. All of the stays in interim order cases
must be issued under the All Writs Act because the other statutory basis for stays, 28 U.S.C.
§ 2101(f), is limited to final orders, see HART & WECHSLER, supra note 22, at 376. Combining
these points, since the All Writs Act is the basis for the stay and a stay is functionally similar to an
injunction, it would come under the Peru rule. And, if not, a writ of mandamus or prohibition
should often be available to achieve the same end.
149 See Ex parte United States, 287 U.S. 241, 248–49 (1932).
150 Article II vests the executive power in a singular President. U.S. CONST. art. II, § 1, cl. 1.
Article III vests the judicial power in the plural Supreme Court and in the lower federal courts
created by Congress. Id. art. III, § 1, cl. 1. For a notable account of this view, see generally Steven
G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary,
105 HARV. L. REV. 1153 (1992).
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executive officials exercise the President’s power on his behalf.151 By
contrast, lower federal courts, like the Supreme Court, exercise the judicial power directly from the Constitution.152 The Framers famously
rejected a plural executive branch for fear that it would lack adequate
accountability, dispatch, and energy.153
And yet there are many important structural similarities between the
presidency and the judiciary. “The Vesting Clauses of Articles II and
III contain nearly identical language in parallel grammatical formulations,” note Professors Steven Calabresi and Saikrishna Prakash.154
They add that both clauses “omit the ‘herein granted’ qualification that
appears in the Vesting Clause of Article I, and both confer general grants
of power (executive or judicial) on federal governmental entities that are
then defined and limited by later provisions of Articles II and III.”155
The judiciary is also, like the executive branch and unlike Congress,
a hierarchical institution. And the Supreme Court shares with the President a core tenet of unitary theory about the operation of this hierarchy:
the power to direct and control subordinate officials.156 The President
effectuates this power through the authority to fire subordinate executive branch officials.157 The Supreme Court effectuates it through
appellate authority over lower court decisions. It exercises this power
via, among other mechanisms, merits review; vertical stare decisis;158
supervisory writs and other supervisory tools;159 various docket mechanisms (such as summary reversals);160 and — most consequentially in
reviewing executive branch action in modern times — its broad interim
orders power.161
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151 See Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996) (en banc), rev’d, 521 U.S. 320 (1997).
152 See id.; see also Myers v. United States, 272 U.S. 52, 130 (1926) (“The judicial power described
in the second section of Article III is vested in the courts collectively . . . .”).
153 The classic statement of this reasoning is THE FEDERALIST NO. 70 (Alexander Hamilton).
154 Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws,
104 YALE L.J. 541, 570–71 (1994).
155 Id. at 571.
156 See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020); Trump v. United States, 144 S. Ct.
2312, 2335 (2024); Collins v. Yellen, 141 S. Ct. 1761, 1784 (2021).
157 See cases cited supra note 156.
158 See Agostini v. Felton, 521 U.S. 203, 235–36 (1997); Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989).
159 See James E. Pfander, Jurisdiction-Stripping and the Supreme Court’s Power to Supervise
Inferior Tribunals, 78 TEX. L. REV. 1433, 1456 (2000); Amy Coney Barrett, The Supervisory Power
of the Supreme Court, 106 COLUM. L. REV. 324, 330 (2006).
160 See Richard C. Chen, Summary Dispositions as Precedent, 61 WM. & MARY L. REV. 691,
701 (2020).
161 The Supreme Court’s power to direct and control subordinate officials is subject to significant
though uncertain congressional constraints on its appellate jurisdiction, see HART & WECHSLER,
supra note 22, at 422–28, as in different ways is the President’s directive power, see, e.g., Seila L.,
140 S. Ct. at 2198–200 (recognizing exceptions to (that is, limitations on) “the President’s unrestricted removal power,” id. at 2198 — “one for multimember expert agencies that do not wield
substantial executive power, and one for inferior officers with limited duties and no policymaking
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THE SUPREME COURT — ESSAY
113
In its interim orders, a Court inclined to enhance the President’s vertical control over his subordinates has also enhanced its vertical control
over its own subordinates.162 The core rationale for such control in unitary executive theory is that the President alone is “directly accountable
to the people through regular elections” for executive branch actions.163
For the Court in 2025, the relevant accountability is the judiciary’s accountability to the executive branch.164 However the Court rules on
interim orders, it must have the authority to assert early and effective
vertical control over the lower courts’ orders because the Court is ultimately responsible for the severe political fallout from the shutdowns of
presidential initiatives, which threaten the Court itself.165 This dynamic
was nowhere more apparent than in the most important interim order
last Term, and in a long time, Trump v. CASA.
IV. TRUMP V. CASA AND THE LAW-DECLARATION COURT
After nearly a decade of controversy, the Court finally addressed the
legality of universal injunctions in its important interim order decision
in Trump v. CASA. This Part analyzes the decision and its novel understanding of equitable remedies in federal question cases. It then assesses
its implications for the Court’s interim orders practice in executive
branch cases. It finally explains what the decision reveals about the
Court’s and the executive branch’s views of judicial supremacy.
A. CASA, Equitable Remedies, and 1789
CASA was a consolidated challenge to President Trump’s executive order denying certain persons birthright citizenship under the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
or administrative authority,” id. at 2199–200); Myers v. United States, 272 U.S. 52, 135 (1926)
(“[T]here may be duties so peculiarly and specifically committed to the discretion of a particular
officer as to raise a question whether the President may overrule or revise the officer’s interpretation
of his statutory duty in a particular instance.”). The Court and the President also face different
kinds of constraints in controlling subordinate agents. The Court can in theory exercise vertical
control over every single subordinate federal court, but it is typically dependent on a litigant seeking
relief to do so as well as certain jurisdictional prerequisites. The President can act at any time
without need for request, but under current law he cannot direct every single executive branch
subordinate. See Seila L., 140 S. Ct. at 2198–200; Myers, 272 U.S. at 134–35.
162 But see Blake Emerson, The Binary Executive, 132 YALE L.J.F. 756, 757 (2022) (arguing that
the Court’s “intensified . . . scrutiny of administrative policymaking” implies that the Court itself is
exercising and thus bifurcating executive power).
163 Seila L., 140 S. Ct. at 2203.
164 I am using “accountability” here in its broadest sense to mean “the ability of one actor to
demand an explanation or justification of another actor for its actions and to reward or punish that
second actor on the basis of its performance or its explanation.” Edward Rubin, Essay, The Myth
of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2073 (2005).
165 See Adrian Vermeule, Opinion, Someone Is Defying the Supreme Court, But It Isn’t Trump,
N.Y. TIMES (July 31, 2025), https://www.nytimes.com/2025/07/31/opinion/supreme-court-trumpjudges-defiance.html [https://perma.cc/9AT8-V9PD] (arguing that “the federal judiciary suffers
from a kind of collective-action problem” since “[t]he whole institution bears the costs of disruption
and diminished credibility from such lower-court defiance”).
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Fourteenth Amendment.166 Three federal district courts ruled the order
unconstitutional and enjoined it on a universal basis, which three courts
of appeals declined to stay.167 The government applied to the Supreme
Court for partial stays to bar the allegedly invalid application of these
injunctions to nonparties but did not seek to stay the injunctions of the
order as applied to the plaintiffs.168 The Court ordered oral argument,
which is unusual for stay applications.169 In an opinion by Justice Barrett for six Justices, the Court granted the stay after concluding that the
government was likely to succeed on its claim that federal courts lacked
authority to issue universal injunctions under Section 11 of the Judiciary
Act of 1789.170
The Court stated that Section 11 “endowed federal courts with jurisdiction over ‘all suits . . . in equity,’ and still today . . . ‘is what authorizes the federal courts to issue equitable remedies.’”171 The Court
did not examine the text or context of Section 11 in reaching this conclusion.172 Instead, it relied heavily on a decision that premised federal
jurisdiction on party diversity — Grupo Mexicano de Desarrollo, S.A. v.
Alliance Bond Fund, Inc.173 It reasoned, quoting Grupo, that Section
11 encompasses only equitable remedies “‘traditionally accorded by
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166 Exec. Order No. 14,160, 90 Fed. Reg. 8449, 8449 (Jan. 20, 2025).
167 See CASA, 145 S. Ct. at 2549 (citing CASA, Inc. v. Trump, 763 F. Supp. 3d 723 (D. Md. 2025);
Washington v. Trump, 765 F. Supp. 3d 1142 (W.D. Wash. 2025); Doe v. Trump, 766 F. Supp. 3d 266
(D. Mass. 2025)).
168 Application for a Partial Stay of the Injunction Issued by the United States District Court for
the Western District of Washington at 4, Trump v. Washington, 145 S. Ct. 2540 (2025) (No. 24A885);
Application for a Partial Stay of the Injunction Issued by the United States District Court for the
District of Massachusetts at 4, Trump v. New Jersey, 145 S. Ct. 2540 (2025) (No. 24A886); Application for a Partial Stay, supra note 27, at 4 (CASA).
169 Order Setting Oral Argument, Trump v. Washington, 145 S. Ct. 2540 (2025) (No. 24A885);
Order Setting Oral Argument, Trump v. New Jersey, 145 S. Ct. 2540 (2025) (No. 24A886); Order
Setting Oral Argument, CASA, 145 S. Ct. 2540 (No. 24A884).
170 ch. 20, § 11, 1 Stat. 73, 78; CASA, 145 S. Ct. at 2550–51 (quoting Section 11). The Court also
concluded that the government suffered irreparable harm but noted that this element of the test
for a stay turned on the likelihood of success on the universal injunction question and not on the
government’s likelihood of success on the underlying merits (that is, birthright citizenship). Id.
at 2561–62. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. Id. at 2573
(Sotomayor, J., dissenting). She challenged the Court’s historicist-textualist and irreparable harm
analyses. See id. at 2580–81, 2585–87. She added that while “[t]here may be good reasons not to
issue universal injunctions in the typical case, when the merits are open to reasonable disagreement
and there is no claim of extraordinary and imminent irreparable harm,” the “patently unconstitutional” birthright citizenship order was an exception that justified universal relief. Id. at 2584–85.
Justice Jackson filed a lone dissent that defended universal injunctions on the ground that “courts
must have the power to order everyone (including the Executive) to follow the law.” Id. at 2597
(Jackson, J., dissenting). For further discussion of Justice Jackson’s dissent, see infra section IV.D,
pp. 124–26.
171 Id. at 2551 (majority opinion) (quoting Judiciary Act of 1789, § 11; SAMUEL L. BRAY &
EMILY SHERWIN, REMEDIES 442 (4th ed. 2024) (first omission in original) (citations omitted)).
172 See id.
173 527 U.S. 308 (1999); CASA, 145 S. Ct. at 2551 (quoting Grupo, 527 U.S. at 319).
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THE SUPREME COURT — ESSAY
115
courts of equity’ at our country’s inception.”174 This meant that the
availability of universal injunctions in constitutional cases in 2025
turned on whether they were “‘analogous’ to the relief issued ‘by the
High Court of Chancery in England’ [in 1789].”175 Since neither universal injunctions nor analogues existed then or for a long time afterward, the Court concluded, they are unavailable today.176
The Court’s claim that an equitable remedy in a federal question
case is authorized by Section 11 and thus “must have a founding-era
antecedent” is novel.177 It is also questionable since Section 11 cannot
have authorized equitable remedies in CASA.
Section 11 is a jurisdictional statute.178 The subject matter jurisdiction in CASA has no connection to the subject matter jurisdiction in
Section 11.179 Jurisdiction in CASA was based on federal question jurisdiction and suits against the United States.180 Neither head of jurisdiction is mentioned in Section 11 because neither existed until the last
quarter of the nineteenth century.181 And none of the three heads of
subject matter jurisdiction in Section 11 has any legal connection to
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174 Grupo itself was novel, untrue to the nature of equity, and represented an “artificial history.”
Samuel L. Bray, The Supreme Court and the New Equity, 68 VAND. L. REV. 997, 1011–12, 1014–
23 (2015).
175 CASA, 145 S. Ct. at 2551 (quoting Grupo, 527 U.S. at 318–19).
176 The Court stated that 1789 was the touchstone of analysis but examined developments into
the twentieth century. Id. at 2551–53.
177 Id. at 2554.
178 In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court ruled that Section 9 of the Judiciary Act of 1789 was a “strictly jurisdictional” statute because the 1789 statute was “exclusively
concerned with federal-court jurisdiction” and because it used the term “cognizance,” which “bespoke a grant of jurisdiction.” Id. at 713. These same points apply to Section 11.
179 Section 11 provided that the (lower federal) circuit courts “shall have original cognizance . . . of all suits of a civil nature at common law or in equity,” in certain cases where either (i)
“the United States are plaintiffs, or petitioners” in the circuit courts; (ii) “an alien is a party”; or (iii)
“the suit is between a citizen of the State where the suit is brought, and a citizen of another State.”
Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78.
180 28 U.S.C. § 1331 and 28 U.S.C. § 1346, respectively. See, e.g., Complaint for Declaratory and
Injunctive Relief at 3, New Jersey v. Trump, 766 F. Supp. 3d 266 (D. Mass. 2025) (No. 25-cv-10139).
The federal question basis for CASA is clear. Section 1346(a)(2) is a more doubtful basis, since it
authorizes only recovery of money claims in concurrent federal district jurisdiction against the government, which were not sought in CASA. See United States v. King, 395 U.S. 1, 2–3 (1969) (limiting
Court of Claims jurisdiction to “money claims against the United States Government”).
181 The contemporary federal question jurisdiction statute, 28 U.S.C. § 1331, originated in the
Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470, which provided that “the circuit courts of the
United States shall have original cognizance . . . of all suits of a civil nature at common law or in
equity, . . . arising under the Constitution or laws of the United States, or treaties made, or which
shall be made, under their authority . . . .” (Congress in 1801 enacted a federal question statute, see
Judiciary Act of 1801, ch. 4, § 11, 2 Stat. 89, 92, but then quickly repealed it, Act of Mar. 8, 1802,
ch 8, § 1, 2 Stat. 132, 132.) 28 U.S.C. § 1346 originated in the Tucker Act of 1887, ch. 359, 24 Stat.
505, which provided that “the Court of Claims shall have jurisdiction to hear and determine . . . [a]ll
claims founded upon the Constitution of the United States or any law of Congress, . . . with the
Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding
in tort,” id. § 1, and further established (with different dollar amount limits) concurrent jurisdiction
in the district courts and circuit courts, id. § 2.
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CASA.182 On the Court’s logic that jurisdictional statutes authorize equitable remedies, it should have looked to the state of remedies beginning in 1875, when the federal question jurisdiction statute was enacted,
not 1789.183
A second muddle is that it is an anachronism to say that Section 11
“authorized” federal courts to issue equitable remedies. Such remedies
were treated as nonfederal general law prior to the 1938 decision Erie
Railroad Co. v. Tompkins.184 Courts with jurisdiction could apply general law, but domestic statutes (including jurisdictional ones) did not
authorize application of that law, which “was not imposed by, and did
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182 The diversity jurisdiction in Section 11 has no possible relevance to CASA since one party is
the government. Nor does the head of jurisdiction based on “the United States [being] plaintiffs, or
petitioners” in the circuit courts. The United States is a party in CASA, but it is a defendant, not a
plaintiff or petitioner in the trial court as Section 11 contemplates. Suits against the government
were not authorized until 1887, see supra note 181, and even then only in a limited way. The “alien
is a party” head also has no conceivable relevance to the CASA lawsuit between only states and
local governments and the U.S. government, and thus cannot be the basis for the Court’s decision.
See Complaint for Declaratory and Injunctive Relief, supra note 180, at 1. In two of the three
complaints, some plaintiffs are aliens. See Consolidated Complaint for Declaratory and Injunctive
Relief at 6, Washington v. Trump, 765 F. Supp. 3d 1142 (W.D. Wash. 2025) (No. 25-cv-0127); First
Amended Complaint at 6–8, CASA, Inc. v. Trump, 763 F. Supp. 3d 723 (D. Md. 2025) (No. 25-cv1484). But even so, Section 11’s “alien as a party” jurisdiction cannot help. The Court in Mossman
v. Higginson, 4 U.S. (4 Dall.) 12 (1800), held alien-only jurisdiction unconstitutional (because in that
case it was supported by no head of Article III), id. at 13, and construed it there, and thereafter,
see, e.g., Jackson v. Twentyman, 27 U.S. (2 Pet.) 136, 136 (1829), to mean alien diversity jurisdiction,
which Congress codified as such in the Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470 (codified
as amended at 28 U.S.C. § 1331). Alien-as-a-party jurisdiction no longer exists, and alien-diversity
jurisdiction is not implicated by the second or third CASA suit, even though some plaintiffs are
aliens.
In addition to its primary reliance on Grupo, the Court cited Payne v. Hook, 74 U.S. (7 Wall.)
425, 430 (1869); Guaranty Trust Co. v. York, 326 U.S. 99, 105 (1945); and Boyle v. Zacharie & Turner,
31 U.S. (6 Pet.) 648, 658 (1832). See CASA, 145 S. Ct. at 2551 & n.5. All three of these cases were
Section 11 diversity cases, not federal question cases, and two were decided before federal question
jurisdiction existed.
183 The Court, if it had taken this route, might have reached the same conclusion as it did in
CASA since it concluded that “universal injunctions were not a feature of federal-court litigation
until sometime in the 20th century.” CASA, 145 S. Ct. at 2553. Yet, despite CASA’s 1789 touchstone,
it looked to cases and practices many decades beyond 1789 in ascertaining the 1789 meaning, see
id. at 2551–53, and it may have looked further in time if it had set the baseline in 1875. Note that
in contrast to Grupo’s approach to Section 11, the Court has looked to different historical baselines
when assessing equitable remedies in “later-enacted statutes” in federal question cases. Carlos M.
Vázquez, The Constitution as a Source of Remedial Law, 132 YALE L.J.F. 1062, 1068 (2023) (noting
that Cigna Corp. v. Amara, 563 U.S. 421 (2011), held that to ascertain the equitable relief available
under the Employment Retirement Income Security Act, enacted in 1974, the Court looks to “‘those
categories of relief’ that ‘were typically available in equity,’” id. at 439, “‘in the days of the divided
bench,’ that is, ‘prior to the merger of law and equity,’” which was in 1938, Sereboff v. Mid Atl.
Med. Servs., Inc., 547 U.S. 356, 361–62 (2006) (omissions in original) (footnote omitted)).
184 304 U.S. 64 (1938). On equitable remedies as general law prior to Erie, see York, 326 U.S. at
102–03, 102 n.1; see also John Harrison, Ex parte Young, 60 STAN. L. REV. 989, 1014 & n.103 (2008)
(explaining that certain equitable remedies were “part of the general law,” id. at 1014 n.103); Michael T. Morley, The Federal Equity Power, 59 B.C. L. REV. 217, 220, 241, 244–46 (2018) (describing
how equity resembled the pre-Erie general law).
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not receive its binding force from, any particular sovereign.”185 (Nor
was the general law of equitable remedies beholden to a 1789 baseline.186) After Erie, equitable remedies, like all law in federal court,
must have some state or federal sovereign source.187 CASA deemed that
source to be Section 11 without explanation.188 This retrojection of a
post-Erie conceptual apparatus onto a 1789 statute is (beyond Section
11 being irrelevant to CASA) a distortion of the 1789 worldview and in
no sense originalist.189
Not even Grupo, which did properly rest on Section 11, quite said
that Section 11 authorized equitable remedies.190 Notably, its author,
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185 Morley, supra note 184, at 244; accord Curtis A. Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV.
815, 823 (1997); William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act
of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1515, 1517–21 (1984); Stewart
Jay, Origins of Federal Common Law: Part Two, 133 U. PA. L. REV. 1231, 1263–79 (1985); see also
Sosa v. Alvarez-Machain, 542 U.S. 692, 713, 725 (2004). Section 9 of Judiciary Act of 1789 is jurisdictional only and does not authorize new causes of action, id. at 713, but the accepted conception
was of the common law as “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute,” id. at 725 (quoting Black & White Taxicab &
Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J.,
dissenting)).
186 See Gordon v. Washington, 295 U.S. 30 (1935), a diversity case cited in Grupo, which correctly
stated that “[f]rom the beginning, the phrase ‘suits in equity’ [in § 11 of the Judiciary Act] has been
understood to refer to suits in which relief is sought according to the principles applied by the
English [C]ourt of [C]hancery before 1789, as they have been developed in the federal courts.”
Id. at 36 (emphasis added); see also, e.g., Union Pac. Ry. Co. v. Chi., Rock Island & Pac. Ry. Co.,
163 U.S. 564, 600–01 (1896) (noting that “in the increasing complexities of modern business relations[,] equitable remedies have necessarily and steadily been expanded, and no inflexible rule has
been permitted to circumscribe them,” and adding that “new [remedies] may be invented, or old
ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition” (quoting 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY
JURISPRUDENCE § 111 (Spencer W. Symons ed., 5th ed. 1941))).
187 Erie, 304 U.S. at 78 (“Except in matters governed by the Federal Constitution or by Acts of
Congress, the law to be applied in any case is the law of the State.”); see also Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 416 (2010) (opinion of Scalia, J.) (“[W]here neither
the Constitution, a treaty, nor a statute provides the rule of decision or authorizes a federal court to
supply one, ‘state law must govern because there can be no other law.’” (quoting Hanna v. Plumer,
380 U.S. 460, 471–72 (1965))).
188 See 145 S. Ct. at 2551.
189 For analysis of the general problem of using originalist tools to analyze general law doctrines
for legal conclusions after Erie, see generally Jack Goldsmith, Erie and Contemporary Federal
Courts Doctrine, HARV. J.L. & PUB. POL’Y: PER CURIAM, Spring 2023, and Jack Goldsmith &
Curtis Bradley, The General Law Turn in Legal Scholarship and the Problem of 1938 (unpublished
manuscript) (on file with the Harvard Law School Library). For specific criticism of Grupo’s “particular kind of originalist approach to equity” as “misguided,” see Bray, supra note 174, at 1011–12.
190 Grupo quoted Atlas Life Insurance Co. v. W.I. Southern, Inc., 306 U.S. 563 (1939), a post-Erie
diversity case, for the proposition that “jurisdiction” conferred by Section 11 “is an authority to
administer in equity suits the principles of the system of judicial remedies which had been devised
and was being administered by the English Court of Chancery at the time of the separation of the
two countries.” 527 U.S. 308, 318 (1999) (quoting Atlas, 306 U.S. at 568). Atlas cited pre-Erie
general law decisions for this proposition and placed the term “jurisdiction” in quotation marks.
306 U.S. at 568. In the pre-Erie context, the oft-made claim that diversity “jurisdiction” conferred
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Justice Scalia, took a different view in a federal question case fourteen
years later in Armstrong v. Exceptional Child Center, Inc.191 Armstrong
did not mention Grupo or any jurisdictional statute, much less Section
11, in assessing the basis for equitable remedies.192 Rather, it stated that
the “ability to sue to enjoin unconstitutional actions by . . . federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England,” and “is
a judge-made remedy.”193 The idea that such remedies are judge made
and emerge from the historical tradition in equity, rather than being
authorized by an Act of Congress in 1789, had been assumed in many
post-Erie federal question cases before CASA.194 The Court had never
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by Section 11 is an “authority to administer” the system of judicial remedies is not a claim that
Congress authorized equitable remedies. See, e.g., Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658 (1832)
(distinguishing equity jurisdiction and the “modes of proceeding in equity,” both authorized by statute, from “the remedies in equity . . . to be administered . . . according to the practice of courts of
equity in the parent country,” which are “general principles of . . . equity”); see also supra note 178.
Grupo also cited York and Gordon, two diversity cases that made similar points citing general law
cases. See Grupo, 527 U.S. at 318. It also cited Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368
(1949), a federal question case that in a footnote stated that the merger of law and equity in the
1938 Federal Rules of Civil Procedure did not alter substantive equity. See id. at 382 n.26. The
last citation for this proposition was from the Atlas passage quoted above. Atlas had noted that the
1789 Act was “perpetuated in § 24(1) of the Judicial Code, 28 U.S.C. § 41(1),” which is a reference
to the Judicial Code of 1911, ch. 231, § 24, 36 Stat. 1087, 1091. See 306 U.S. at 568. Section 24 of
the Judicial Code consolidated diversity and federal question into one part of the judicial code for
the first time. § 24, 36 Stat. at 1091. When Stainback cited Atlas’s statement that Section 11 was
“perpetuated in § 24(1) of the Judicial Code, 28 U.S.C. § 41(1),” it added the bracketed phrase “[now
§§ 1331 et seq.].” 336 U.S. at 382 n.26 (quoting Atlas, 306 U.S. at 568). The bracketed words
accurately state that the federal question portion of Section 24(1) later became 28 U.S.C. § 1331.
But Section 11 was not in fact “perpetuated” in the federal question portion of Section 24 of the
1911 statute, and Stainback should not be interpreted otherwise. No Supreme Court decision other
than Grupo has ever cited footnote 26 of Stainback concerning the authorization for equitable
remedies.
191 575 U.S. 320 (2015).
192 See id. at 327. The issue in Armstrong was a federal statutory claim under the Medicaid Act
against state officials that the court below had grounded in the Supremacy Clause. Exceptional
Child Ctr., Inc. v. Armstrong, 567 F. App’x 496, 497 (9th Cir. 2014), rev’d, 575 U.S. 320 (2015). The
Court drew by analogy on its caselaw involving federal officers to resolve the case and made clear,
as the quotation in the text indicates, that its understanding of the basis for equitable remedies
applied equally in both state and federal officer contexts. See Armstrong, 575 U.S. at 326–27.
193 Armstrong, 575 U.S. at 327 (emphases added).
194 York, a diversity case, “put to one side” federal question cases and cited decisions suggesting
that such remedies in that context were elements of post-Erie federal common law. Guaranty Trust
Co. v. York, 326 U.S. 99, 101 (1945); see Bd. of Cnty. Comm’rs v. United States, 308 U.S. 343, 350
(1939) (explaining that despite Erie, federal law issue governed by “judicial rule” where “the Court
has drawn upon those flexible considerations of equity which are established sources for judicial
law-making”); Deitrick v. Greaney, 309 U.S. 190, 200–01 (1940) (explaining that despite Erie, equitable estoppel in federal question cases was “left by the statute to judicial determination . . . to be
derived from [the statute] and the federal policy which it has adopted”). The Court ignored the
1789 baseline when it was expanding federal equitable remedies in constitutional cases, see, e.g.,
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971), and when it was narrowing
those remedies, see, e.g., Missouri v. Jenkins, 515 U.S. 70, 88–90 (1995). The Court looks to different
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before CASA deployed Grupo’s reductive historical methodology as the
guide to equitable remedies in such cases.195
The holding in CASA that equitable remedies in federal law cases
“must have a founding-era antecedent,” if taken seriously, has potentially revolutionary implications.196 The scope of equitable remedies
will now be fought on the ground of the Court’s distinction between a
“founding-era” antecedent, which is required, and “an exact historical
match,” which is not, as well as on the proper historical period in which
to make this determination and the uncertain nature of the Court’s “flexibility . . . within the broad boundaries of traditional equitable relief.”197
B. CASA’s Impact on Interim Orders
Trump v. CASA killed universal injunctions under Section 11 but
left district courts other routes to universal relief in challenges to
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and more diffuse historical baselines than 1789 in different federal statutory contexts. See Vázquez,
supra note 183, at 1068. Even the recent decision in Whole Woman’s Health v. Jackson, 142 S. Ct.
522 (2021), which cited Atlas and stated that the “equitable powers of federal courts are limited by
historical practice,” relied on “traditional equitable principles” without mentioning Section 11 and
without concern with a 1789 baseline. Id. at 535. Whole Woman’s Health stated that Ex parte
Young, 209 U.S. 123 (1908), which had an important if not radical doctrinal innovation about the
circumstances and scope of equitable relief, id. at 167, was “grounded in traditional equity practice.”
142 S. Ct. at 532.
195 Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, (2002), a federal question
case, mentioned Grupo but used a quite different historical inquiry. Id. at 217. The issue was
whether the Court could apply equitable restitution in an ERISA case. See id. at 206. The Court
stated that the relevant baseline of analysis for equitable restitution was the “days of the divided
bench,” id. at 212, a phrase that almost certainly refers to the period before 1938, see Vázquez, supra
note 183, at 1068. The Court noted that the statute’s reference to “equitable relief” was not hard to
understand because “the basic contours of the term are well known” and the Court rarely needed
to do more than “consult[], as we have done, standard current works such as Dobbs, Palmer, Corbin,
and the Restatements” — sources that span a very long time period, including late into the twentieth
century. Knudson, 534 U.S. at 217. It then cited Grupo for the proposition that “[i]t is an inquiry,
moreover, that we are accustomed to pursuing, and will always have to pursue, in other contexts.”
Id. (citing Grupo, 527 U.S. at 318). The Court’s reference to “other contexts” at issue in Grupo, and
its reliance on a later and more fluid baseline, is consistent with the view that the inquiry was
different in federal question cases that cannot be traced to Section 11.
196 145 S. Ct. at 2554. Those implications are far beyond my present scope but are examined in
Mila Sohoni, CASA, Young, and Affirmative Relief, 139 HARV. L. REV. (forthcoming 2026) (on file
with the Harvard Law School Library), and James E. Pfander & Samy Abdelsalam, Pulp Fiction?
A Reappraisal of Ex parte Young (forthcoming) (on file with the Harvard Law School Library).
197 CASA, 145 S. Ct. at 2554 (quoting Grupo, 527 U.S. at 322). The search for an originalist
“antecedent” that need not be an “exact historical match” has cropped up in other contexts, and it
appears to be a growing, transubstantive, and yet underexplained feature of the contemporary
Court’s jurisprudence. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (Article
III standing inquiry for concreteness “asks whether plaintiffs have identified a close historical or
common-law analogue for their asserted injury” but does “not require an exact duplicate in American history and tradition”); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2133
(2022) (in Second Amendment context, “analogical reasoning requires only that the government
identify a well-established and representative historical analogue, not a historical twin,” such that
“even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster”); United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024)
(similar).
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presidential action. These routes include class actions, the possibility of
Administrative Procedure Act (APA) vacatur, certain suits by states, and
other forms of suit that in giving complete relief incidentally benefit
third parties.198 If these or other mechanisms collectively substitute
for universal injunctions against the government — an open question,
which the Supreme Court will determine over the next few years, often
via interim orders — the Court will face the same basic pressures to
be active in its interim orders, especially in cases where it assesses the
likelihood of success differently than a lower court issuing universal
relief.199
To the extent that these mechanisms turn out to be imperfect substitutes for universal injunctions, the validity of presidential actions during
the interim period will be less uniform throughout the country.200 Lower
courts could enjoin illegal executive-branch action against those who
sue and win, while others who don’t or can’t sue, or who lose in other
courts, would remain subject to presidential enforcement. The Court’s
current aggressive interim order posture might shift in this context. Relief against the executive branch that binds the government only to parties will tend to burden the executive branch much less than a universal
injunction and reduce that dimension of pressure for interim relief from
the Court to intervene — especially in cases close on the law.201
But when universal relief is unavailable against plainly illegal executive action — as many believed was true of the birthright citizenship
order — a different dynamic could emerge. A law-indifferent President
could act unlawfully for long periods against those who cannot sue. The
Court might in this situation feel pressure to intervene early via interim
orders. Yet that possibility raises a question: Can the Supreme Court
itself issue universal relief? CASA appeared to hold that all federal
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198 CASA, 145 S. Ct. at 2554 n.10 (APA vacatur); id. at 2555–56 (class actions); id. at 2558 (certain
suits by states); id. at 2557 (incidental benefit to third parties).
199 See supra Part I, pp. 88–95.
200 Uniformity will also depend on the extent to which the executive branch acquiesces in circuit
court decisions intra-circuit. At oral argument in CASA, the Solicitor General stated that the
government’s “practice is to respect circuit precedent within the circuit, but there are exceptions
to that.” Transcript of Oral Argument at 33, CASA, 145 S. Ct. 2540 (No. 24A884), https://
www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24a884_c07d.pdf
[https://
perma.cc/6AUK-X863]; see, e.g., Dep’t of Def. Response to Interlocutory Decision of Ct. of Appeals
Regarding Statute Requiring Separation of Homosexual Serv. Members from Mil., 34 Op. O.L.C.
100, 110–11 (2010) (describing one exception). The executive branch practice of not acquiescing
“has been condemned by almost every circuit court of appeals that has confronted it.” Johnson v.
U.S. R.R. Ret. Bd., 969 F.2d 1082, 1091 (D.C. Cir. 1992).
201 But see CASA, 145 S. Ct. at 2568–69 (Kavanaugh, J., concurring) (arguing for “a nationally
uniform answer on whether a major new federal statute, rule, or executive order can be enforced
throughout the United States during the several-year interim period until its legality is finally decided on the merits” even after elimination of universal injunctions (emphasis omitted)).
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courts lack authority under Section 11 to issue a universal injunction.202
And yet as explained below, CASA made clear that the Supreme
Court’s judgments and opinions still have universal effect against the
government.
C. CASA and Horizontal Judicial Supremacy
The most remarkable aspect of CASA is that it was the occasion for
an extensive public discussion between the Court and the executive
branch about the supremacy of Supreme Court rulings vis-à-vis the executive branch that (as far as I can tell) lacks any parallel in American
history.203
The judicial supremacy issue was thoroughly vetted at oral argument.204 A central concern was whether elimination of universal injunctions would leave broad swaths of clearly illegal presidential action
beyond federal court redress.205 Five Justices asked Solicitor General
D. John Sauer if the government would honor Supreme Court rulings
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202 See id. at 2548 (majority opinion) (concluding that universal injunctions “likely exceed the
equitable authority that Congress has granted to federal courts”); see also id. at 2550–51, 2554–55
(noting that “federal courts” lack authority to issue universal injunctions).
203 A related issue came up in passing in oral argument in United States v. Texas, 143 S. Ct. 1964
(2023). The Biden Administration had argued against universal vacatur under section 706 of the
APA. Transcript of Oral Argument at 4, 48–50, United States v. Texas, 143 S. Ct. 1964 (No. 22-58),
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-58_4fc4.pdf [https://
perma.cc/M9BP-LCEH]. Justice Kavanaugh asked whether the Court’s vacatur under 706 would
have universal effect. Id. at 57–58. Solicitor General Elizabeth Prelogar answered that “this Court
would have authority, of course, to issue a declaratory judgment and we would abide by that
throughout the nation if this Court said what the law meant in this area.” Id. at 58; see also Transcript of Oral Argument at 60–62, United States v. Nixon, 418 U.S. 683 (1974) (Nos. 73-1766 & 731834) https://www.supremecourt.gov/pdfs/transcripts/1973/73-1766_73-1834_07-08-1974.pdf [https://
perma.cc/29NR-L8ZZ] (President Richard Nixon’s attorney, James St. Clair, hinting that the President might not be bound by legal ruling to turn over subpoenaed documents).
204 The run up to the argument raised some of these points. The government told the Court in
February that “[t]he Executive Branch takes seriously its constitutional duty to comply with the
orders of Article III courts.” Application to Vacate the Order Issued by the United States District
Court for the District of Columbia and Request for an Immediate Administrative Stay at 26, Dep’t
of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753 (2025) (No. 24A831). This said nothing about
the executive branch’s stance toward the opinions of Article III judges. In its application for a stay
in CASA in March, the government went further in claiming that the Supreme Court’s decisions
“constitute controlling precedent throughout the Nation.” Application for a Partial Stay, supra note
27, at 18–19 (emphasis added). It used this point to argue against universal injunctions, which it
claimed “subvert the Article III hierarchy of judicial review” and upend the Article III hierarchy
by “imbuing the orders of courts of first instance with the type of nationwide effect usually reserved
for the precedents of the court of last resort.” Id. at 19; cf. Read the Full Transcript of Donald
Trump’s ‘100 Days’ Interview with TIME, TIME (Apr. 25, 2025, at 06:01 ET), https://time.com/
7280114/donald-trump-2025-interview-transcript [https://perma.cc/2HQA-7YGN] (“I’m not defying the Supreme Court. I never defy the Supreme Court. I wouldn’t do that. I’m a big believer in
the Supreme Court, and have a lot of respect for the Justices.”).
205 See, e.g., Transcript of Oral Argument, supra note 200, at 44. The concern was central in
CASA because the birthright citizenship order defied an old Supreme Court precedent and longsettled practice. See CASA, 145 S. Ct. at 2575–77 (Sotomayor, J., dissenting) (discussing, inter alia,
United States v. Wong Kim Ark, 169 U.S. 649 (1898)).
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universally if such injunctions were eliminated.206 Sauer in different
formulations pledged that it would.207 Justice Kagan raised a related
concern: The government could act egregiously unlawfully and thus
consistently lose in lower courts that cannot provide universal relief yet
not seek certiorari.208 Since prevailing parties can’t appeal, the Court
might be unable to reach the merits, resulting in government implementation of the unlawful policy against “the vast majority of people to
whom [the EO] applies” but who are not involved in a lower court lawsuit.209 Sauer pledged that the government would seek certiorari in this
circumstance so the Court could review the policy.210
The Court ruled for the government on universal injunctions but
recorded these pledges in its opinion:
[A]t oral argument, the Solicitor General acknowledged that challenges to
the Executive Order are pending in multiple circuits, and when asked directly “When you lose one of those, do you intend to seek cert?”, the Solicitor
General responded, “yes, absolutely.” And while the dissent speculates that
the Government would disregard an unfavorable opinion from this Court,
the Solicitor General represented that the Government will respect both the
judgments and the opinions of this Court.211
In addition, despite the Court’s holding that federal courts lack authority to issue universal injunctions, the Court appeared to enjoin the
government from enforcing the Executive Order for 30 days in terms
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206 See Transcript of Oral Argument, supra note 200, at 35, 36–37, 45, 54–55, 62–63.
207 Justice Kavanaugh quoted from Sauer’s application: “And, of course, this Court’s decisions
constitute controlling precedent throughout the nation. If this Court were to hold a challenged
statute or policy unconstitutional, the government could not successfully enforce it against anyone,
party or not, in light of stare decisis.” Transcript of Oral Argument, supra note 200, at 54–55 (quoting Application for a Partial Stay, supra note 27, at 18–19). When Sauer was asked if the government agreed, he said “Yes, we do.” Id. at 55; see also id. at 9 (Sauer tells Justice Sotomayor that
“[t]he Supreme Court would have the authority to issue binding precedent nationwide.”); id. at 35
(Sauer says to Justice Kagan that if the Supreme Court ruled the birthright citizenship ban unconstitutional, “[t]hat would be a nationwide precedent that the government would respect.”); id. at
62–63 (Sauer agrees with Justice Barrett that the government would “respect the opinions and the
judgments of the Supreme Court” and confirms that he was not “hedging at all with respect to the
precedent of this Court.”); id. at 36–37 (Sauer appears to agree with Chief Justice Roberts that the
Supreme Court “can issue a decision and it will bind everything else.”).
208 Application for a Partial Stay, supra note 27, at 46–47.
209 Id. at 49.
210 Id. at 50.
211 CASA, 145 S. Ct. at 2561 n.18 (emphasis added) (citations omitted) (quoting Transcript of Oral
Argument, supra note 200, at 50) (citing id. at 62–63).
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that suggested universal applicability.212 The government appeared to
accept this interpretation.213
The Court’s restatement of Sauer’s pledge to respect the judgments
and opinions of the Court is probably not a preservation of a universal
injunction power under Section 11 in the Court.214 Rather, it concerned
executive branch compliance on a universal basis with all Supreme
Court judgments and opinions, including ones not involving injunctions.
Neither the Court nor Sauer explained the basis for Sauer’s pledge —
whether it reflects a legal obligation, a practical accommodation, or
some other form of deference.215 Whatever the basis, the concession
does not by itself guarantee executive branch compliance any more than
any other nonenforceable executive branch pledge or judicial opinion
does.216
And yet the pledge is far from meaningless.217 The felt need of the
judiciary-threatening Trump Administration to make this and other
pledges of fealty to the Court indicates the importance to the executive
branch of favorable Supreme Court rulings and, more broadly, the
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212 Id. at 2563 (“[Section] 2 of the Executive Order shall not take effect until 30 days after the
date of this opinion.”). In saying that the injunction implies universal applicability, I mean that the
Court appears to contemplate that the government will follow the order as to everyone. This is not
because the command itself is a universal injunction, which the Court appeared to hold was beyond
its authority to issue under Section 11. Rather, this appears to be an instance of the Court expecting
that the government will respect its opinions and judgments on a universal basis. See id. at 2561
n.18.
213 See Notice Regarding Implementation of Executive Order at 2, CASA, Inc. v. Trump, No.
25-cv-00201 (D. Md. July 1, 2025) (Justice Department acknowledging that under Trump v. CASA,
“July 27, 2025, is the earliest date on which Defendants may begin to apply Executive Order 14160
to persons covered by the order”). Thirty days passed without the Trump Administration giving
section 2 effect.
214 As discussed in supra note 202, the Court many times said that all “federal courts” lacked
authority under Section 11 to issue universal injunctions. CASA, 145 S. Ct. at 2548, 2550–51,
2554–55.
215 The Court noted the Sauer concession without further explanation. And Sauer’s various
formulations could be read to have different meanings. His statements to Justices Kagan and Barrett pledged that the government would “respect” precedents and opinions on a universal basis,
though he did not explain why. See supra note 207. With Justice Kavanaugh, he seemed to suggest
only that a Supreme Court opinion would bind the government through the operation of vertical
stare decisis on lower federal courts, which would enforce what the Supreme Court decided in other
cases against the government. See supra note 207. This would amount to a weaker commitment
to the extent that lower court judgments bind only parties, and not every affected party can successfully sue. The statements to Justice Sotomayor and Chief Justice Roberts were ambiguous
between these two meanings. See supra note 207. Note that Justice Kavanaugh in concurrence
also presumed universal compliance with Supreme Court opinions but fudged on the basis by saying
that the Court could “effectively settle” matters universally “de jure or de facto.” CASA, 145 S. Ct.
at 2569 (Kavanaugh, J., concurring).
216 See supra section II.A, pp. 95–97.
217 In making the pledges, Sauer was operating under a duty to comply with the legal interpretations of the President and Attorney General, and he was forbidden to “advance an interpretation
of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law.” Exec. Order No. 14,215, 90 Fed. Reg. 10447, 10448–49 (Feb. 18,
2025).
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power of the Court.218 It also distinguishes the Trump Administration
from prior reconstructive presidencies, which made robust departmentalist claims vis-à-vis the Court.219 The executive branch seemed to
think that a concession on compliance with the Court’s judgments and
opinions was the price for the Court’s elimination of universal injunctions by lower courts.220 The Court for its part was interested in vindicating the supremacy of its rulings, de facto or de jure, and extracted an
executive branch pledge to that effect in a decision that most of the
Court was long inclined toward.221 The pledge is not self-executing, of
course, but it will count in any executive-branch calculation to defy the
Court.222
At the same time, the Sauer pledge to respect the Court’s judgments
and opinions also points to their ultimate fragility. The Court’s need for
executive branch assurances underscores that its judgments and opinions are not self-executing. Justice Kagan’s concern about certiorari
points to a different weakness: The Court can only decide cases brought
before it.223 And perhaps most revealingly, the Court quietly recounted
Sauer’s pledges about compliance in a footnote and did not insist on
legalized judicial supremacy vis-à-vis the executive branch. The contrast with Cooper v. Aaron and even United States v. Nixon is notable.224
The entire episode was a delicate dance in which neither side made
strong prerogative claims toward the other and each signaled respect for
the other. More than anything else, the episode confirms that judicial
review of the executive branch is politically constructed, mutually beneficial in the round, and always subject to negotiation.
D. Judiciary Supremacy for We, But Not for Thee
The rhetorical high point in CASA came in the dispute between the
majority and Justice Jackson over the proper function of federal court
adjudication. The central thrust of the Jackson dissent was that
universal injunctions were appropriate because “the fundamental role
of courts is to ‘order everyone (including the Executive) to follow the
law — full stop.’”225 The dissent concluded on this basis that “the function of the courts . . . necessarily includes announcing what the law
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218 On the other pledges, see supra note 204.
219 See supra notes 50–51 and accompanying text.
220 This is close to how the government’s application pitched the argument. See supra note 204.
221 See supra note 47.
222 Among other reasons, the pledge places Sauer’s and the Office of Solicitor General’s reputa-
tions on the line before the Court in a world where the Administration still needs the Court to
implement its program.
223 Transcript of Oral Argument, supra note 200, at 46–47. It is possible in Justice Kagan’s
hypothetical that a court of appeals could certify the question to the Supreme Court even if the
government did not seek review. See 28 U.S.C. § 1254(2); SHAPIRO ET AL., supra note 17, ch. 9.
224 See supra section II.A, pp. 95–97.
225 CASA, 145 S. Ct. at 2560 (quoting id. at 2597 (Jackson, J., dissenting)).
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requires in . . . suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties.”226
The majority described and criticized this position:
Justice Jackson appears to believe that the reasoning behind any court order
demands “universal adherence,” at least where the Executive is concerned.
In her law-declaring vision of the judicial function, a district court’s opinion
is not just persuasive, but has the legal force of a judgment. Once a single
district court deems executive conduct unlawful, it has stated what the law
requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere.
We will not dwell on Justice Jackson’s argument, which is at odds with
more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.227
The Court added that this was “a vision of the judicial role that
would make even the most ardent defender of judicial supremacy
blush.”228 And it said near the end of its opinion that “federal courts do
not exercise general oversight of the Executive Branch; they resolve
cases and controversies consistent with the authority Congress has given
them.”229
The irony here is plain. The law-declaration and judicial-supremacy
views that the Court criticized in the Jackson dissent come very close to
the views it embraced for itself in the oral argument exchanges, in the
footnote-18 settlement, and in the thirty-day injunction at the end of the
opinion.230 The Court seemed to contemplate, as Justice Barrett put it
in a question at oral argument, “a Cooper versus Aaron kind of situation
for the Supreme Court but not for” the lower courts.231 The Court was
not denying that its jurisdiction, like the lower courts’ jurisdiction, is
limited to resolving concrete cases and controversies.232 But for decisions within its jurisdiction, the Court believes its rulings — not just
equitable remedies, but “judgments and opinions” — have universal effect. And they have universal effect, the Court believes, both vertically
(in lower courts) and horizontally (in executive branch practice).
Neither the Court nor the dissent noted this distinction. Neither
explained (or questioned) the basis, legal or otherwise, for the Court’s
law-declaration role. Nor did the Court explain why a law-declaration
function that in the lower courts amounts to judicial imperialism is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
226 Id. at 2602 (Jackson, J., dissenting).
227 Id. at 2560–61 (majority opinion) (emphasis omitted) (footnote omitted) (citations omitted)
(quoting id. at 2597 (Jackson, J., dissenting)).
228 Id. at 2560.
229 Id. at 2562.
230 See supra note 207; CASA, 145 S. Ct. at 2561 n.18, 2563. I thank Professor Will Baude for
his insights on the topic of this paragraph.
231 Transcript of Oral Argument, supra note 200, at 62.
232 See, e.g., California v. Texas, 141 S. Ct. 2104, 2113 (2021); TransUnion LLC v. Ramirez, 141
S. Ct. 2190, 2203, 2206–07 (2021).
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needed and justified in the Supreme Court. The Court might have articulated reasons connected to the Court’s hierarchical “guidance and
governance (superintendence) functions,”233 its duty to “say what the
law is” in cases questioning executive branch power,234 and its unique
contemporary role, in Chief Justice Taft’s famous words, to “authoritatively” declare “principles, the application of which are of wide public
or governmental interest.”235 It might have pointed, too, to the broadening precedential impact of its interim orders;236 or more broadly to the
many other elements of its decisionmaking and agenda control that
serve a law-declaration function.237
The Court instead chose silence in the face of the tension between
its immense law-declaration function and the dispute-resolution rhetoric
that so often justifies its federal-courts doctrines.
CONCLUSION
The Court’s interim orders during the first seven months of President
Trump’s second term “swallowed the court, both in terms of workload
and even practical importance,” as former Solicitor General Gregory G.
Garre correctly put it.238 This Essay has largely elided the familiar
critiques of the Court’s interim orders practices, and has sought instead
to analyze and explain the many complex and significant dimensions of
the Court’s 2025 interim orders related to the presidency — all of which,
in my view, are lawful. Much is going on in these orders. But the
bottom line is that the Court has acted, as it generally has through its
history, to maximize its authority in the face of the reality that it lacks
sword or purse.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
233 Monaghan, supra note 121, at 683.
234 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
235 William Howard Taft, The Jurisdiction of the Supreme Court of the United States Under the
Act of February 13, 1925, 99 CENT. L.J. 149, 150 (1926); see also Jurisdiction of Cir. Cts. of Appeals
and U.S. Sup. Ct.: Hearing on H.R. 10479 Before the H. Comm. on the Judiciary, 67th Cong. 2
(1922) (Chief Justice Taft arguing that the Court’s central task is not error correction for the benefit
of private parties but, rather, to issue decisions about “constitutional questions and other important
questions of law for the public benefit”). But see Thomas P. Schmidt, Orders Without Law, 122
MICH. L. REV. 1003, 1018 (2024) (reviewing VLADECK, supra note 35) (arguing that the emergency
orders docket “should be understood as a small pocket of dispute resolution . . . in a predominantly
law-declaration Court”). For the many other respects in which the Court is a law-declaration court
even as it continues to insist in some cases that it is not (for example, Whole Woman’s Health v.
Jackson, 142 S. Ct. 522 (2021)), see Monaghan, supra note 121, at 717–20.
236 See generally Monaghan, supra note 121, at 683–711 (discussing examples of the Court’s law
declaration through agenda control).
237 See id.
238 Ann E. Marimow, How Trump’s Emergencies and Wins Dominated the Supreme Court Term,
WASH. POST (June 29, 2025), https://www.washingtonpost.com/politics/2025/06/29/supreme-courttrump-emergency-docket [https://perma.cc/C3ZV-R2NS].