Jack Goldsmith writes about the US Supreme Court’s use of interim orders during the first year of the second Donald Trump administration.
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. Second, lower courts issued an unprecedented spate of universal injunctions and related remedies in response to executive initiatives. 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. 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. …
… 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.
