The Trump administration has moved rapidly to carry out the mandate the voters gave it last November. Democrats, naturally, have done everything possible to try to frustrate the administration’s progress. One aspect of that effort has been litigation. Liberal groups have lined up plaintiffs (or in a few cases proceeded without even having a legitimate plaintiff) to try to bring the administration’s actions to a halt. These cases are always brought in districts where there is an overwhelming probability of getting a partisan Democratic judge, and the Democratic judges have nearly always obliged.
In these legal battles, time is of the essence, since the Democrats’ principal objective is delay. So the question of preliminary relief becomes critical: as a practical matter, preliminary relief may be the only important decision that is ever made in the case. In many instances, Democratic Party judges have issued temporary restraining orders without even waiting to hear from the government.
In any request for a TRO or preliminary injunction, a critical factor is likelihood of ultimately prevailing on the merits. In other words, a judge shouldn’t grant temporary relief if it is obvious that the plaintiff has a lousy case, and in all probability will lose. And orders may or may not be stayed pending future proceedings. Again, whether an order is or is not stayed can be hugely important.
In cases that have reached the Supreme Court in these preliminary stages, the administration has done quite well. Yesterday, for example, the Court issued a per Curiam order in Social Security Administration v. AFSCME. The case involves DOGE: Trump’s executive order required all federal agencies to cooperate with DOGE and provide DOGE “full and prompt access to all unclassified agency records, software systems, and IT systems” in a manner “consistent with applicable law.” The District Court granted temporary relief to AFSCME (essentially, the Democratic Party), enjoining the SSA from giving DOGE access to most records, and the 4th Circuit denied the government’s request to stay the preliminary injunction.
The administration brought the case to the Supreme Court on a petition for an emergency stay. Yesterday, the Court granted the government’s stay petition:
When considering whether to grant a stay, this Court looks to four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U. S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987)). After review, we determine that the application of these factors in this case warrants granting the requested stay. We conclude that, under the present circumstances, SSA may proceed to afford members of the SSA DOGE Team access to the agency records in question in order for those members to do their work.
So for now, at least, the administration can proceed. The per Curiam (unsigned) opinion was joined in by the six conservative and moderate justices, while the three leftists dissented. A good sign. Justice Jackson wrote:
[T]he Government fails to substantiate its stay request by showing that it or the public will suffer irreparable harm absent this Court’s intervention. In essence, the “urgency” underlying the Government’s stay application is the mere fact that it cannot be
bothered to wait for the litigation process to play out before proceeding as it wishes.
Yes. Because by the time the litigation process has played out, the Trump administration could be over. Keep in mind that the majority evidently believed that the administration satisfactorily showed that it will ultimately win this case on the merits.
That sentiment has traditionally been insufficient to justify the kind of extraordinary intervention the Government seeks. But, once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them. See, e.g., Noem v. Doe, 605 U. S. ___, ___ (2025) (JACKSON, J., dissenting from grant of application for stay).
It is heartwarming to see Justice Jackson’s frustration.
