In the coming weeks, the Supreme Court is expected to clear its docket of current term cases, with potential major decisions on DACA, abortion, President Trump’s financial records and public funding for religious schools. Like Monday’s ruling on L.G.B.T. discrimination, it’s a safe bet that they will generate outsize attention — and that the decisions will be deeply controversial in some quarters.
But for all of the attention that we pay to these “merits” cases on the court’s docket, the Trump administration, with a majority of the justices’ acquiescence, has quietly racked up a series of less visible — but no less important — victories by repeatedly seeking (and often obtaining) stays of lower-court losses.
Such stay orders are generally unsigned and provide no substantive analysis. But they nevertheless have the effect of allowing challenged government programs to go into full effect even though lower courts have struck them down — and often when no court has ever held them to be lawful in the first place.
Until the Trump administration, they were exceptionally rare. But they have become almost commonplace in the past three years, clearing the way for the president to proceed with many of his most controversial policies without a final determination of their legality.
The idea, at least historically, was that such emergency relief from the Supreme Court was warranted only in “extraordinary” cases — where the government would be irreparably harmed by allowing the lower-court ruling to take effect and where such harm outweighed the harm to the public of allowing a potentially unlawful program to continue operating.
