The importance of being litigious

Lawsuits matter — even when they might not "win." Also: Explaining SCOTUS's Friday evening ruling about the Office of Special Counsel. And: Other SCOTUS decisions.

The reality of litigation challenging the Trump administration is that it isn’t all going to win.

That’s OK.

Forcing the administration to defend its actions, on the record and in public, is important.

The mere fact of litigating can change implementation of policy to improve its application to those affected. Even a loss can advance awareness about oppressive steps being taken by the administration. And, multiple strategies might be taken to challenge certain actions, some of which will be more successful than others.

From a litigation perspective, in other words, not suing is sometimes “obeying in advance.” Actions need to be challenged. If a key aspect of what President Donald Trump, Elon Musk, and others are doing right now is seeing what they can get away with — and what they can convince people that they can do — then a key part of pushing back against that needs to be challenging everything that can be challenged.

In short: Force them to work for it.

We saw what that looks like in practice on Friday, as at least four decisions from district court judges were issued in Trump-related litigation. In one, a judge blocked parts of the Trump administration’s anti-diversity orders. In a second, a judge gave challengers some relief in a challenge to DOGE’s Treasury-related actions. In a third case, a judge who initially issued a temporary restraining order relating to USAID personnel treatment denied the preliminary injunction request. In a final case, the judge denied preliminary relief in a challenge that come out of DOGE’s access to and treatment of employee data — while noting that the plaintiffs could return if circumstances change.

That sounds like a very mixed record, right?

If you step back, though, all four lawsuits did good. In all four cases, the administration was either blocked from taking certain action or forced to make on-the-record concessions to a federal judge in order to fight the litigation and prevent the court from blocking the administration’s actions.

In the USAID decision, for example, U.S. District Judge Carl Nichols, a Trump appointee, detailed at length the commitments that Deputy Administrator Peter Marocco made regarding treatment of employees:

In a supplemental declaration filed as required by the Court, Deputy Administrator Marocco further attests that all overseas employees placed on administrative leave will “continue to fall under the authority of the Chief of Mission” of their diplomatic posting—i.e., the individual at that posting who is statutorily “responsible for the security of the executive branch employees [stationed there] and their eligible family members.” Second Marocco Decl. ¶¶ 3–4; see also 22 U.S.C. § 3927(a) (outlining the duties of a chief of mission). As a result, those employees will continue to be protected through standard “residential, personal, and physical security programs” in place at their mission posts. Second Marocco Decl. ¶

This sort of development to protect overseas employees not only likely happened because of the litigation — but specifically in the context of the temporary restraining order initially put in place by Nichols as a result of the litigation. In other words, the preliminary injunction “loss” followed substantial “wins” in providing needed protections for the employees at issue.

Of course, outright “wins” are good, too. In addressing Trump’s anti-diversity executive orders, U.S. District Judge Adam Abelson detailed three challenged provisions in two orders:

Abelson, a Biden appointee in the federal district court in Maryland, concluded, “Plaintiffs, who have easily established their standing to bring this case and irreparable harm, have shown they are likely to prove the Termination and Enforcement Threat Provisions are unconstitutionally vague on their face.“

Further, he explained the stark First Amendment case before him:

Later, he also detailed the clearly unconstitutional behavior of the Trump administration in beginning to enforce these orders:

Failing to challenge illegal and unconstitutional actions means that Trump and his team will go forward and do more.

That is not an option.

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SCOTUS tentatively tiptoes into the Trump cases

The U.S. Supreme Court issued a somewhat confusing order on Friday evening in the case over Trump’s attempt to fire Hampton Dellinger, the head of the U.S. Office of Special Counsel.

If you recall, after Trump fired Dellinger for no reason despite a law aimed at preventing just that, Dellinger sued. U.S. District Judge Amy Berman Jackson issued an administrative stay and then a temporary restraining order keeping Dellinger in office. After the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s request to block Jackson’s order and allow the firing to go into effect — because a TRO is not generally appealable — Trump went to the Supreme Court.

On Friday evening, seven members of the court rejected Trump’s request to block Jackson’s order immediately (and allow him to fire Dellinger immediately).

A bare majority of five justices — Chief Justice John Roberts and Justices Clarence Thomas, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — formed the court’s decision, which was to hold the administration’s request “in abeyance until February 26, when the TRO is set to expire.” In other words, they are keeping the request before the court — and will take up the matter again if the case below doesn’t move forward by February 26.

Two members of the court — Justices Sonia Sotomayor and Ketanji Brown Jackson — would have rejected the administration’s request outright.

However, the final two justices — Justices Sam Alito and Neil Gorsuch — would have vacated Jackson’s TRO and sent the case back to her for further review. In essence, they would have allowed Trump to fire Dellinger during the litigation.

Where does that leave us?

It appears that someone was — or some number of justices were — able to pull together a very tentative, narrow majority that was willing to send a message: The Supreme Court does not want to get into the practice of needing to weigh in on TROs.

To be clear, though, that is a message not only to the Trump administration. It — and this is the “abeyance” part — is also a message to district court judges: If they are going to take actions substantially affecting the administration, they need to act quickly to get it to an appealable stage — which means ruling on a preliminary injunction request (or converting the TRO to a preliminary injunction) quickly.

As such, I wouldn’t read much, if anything, into this as to the substantive legal questions of Dellinger’s firing. I think this was more about the Supreme Court wanting to send a message about its docket — in light of the extensive litigation it knows is going to be happening over the Trump administration’s actions.

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SCOTUS decisions

Earlier Friday, the Supreme Court also issued decisions in three cases. Although there were, unsurprisingly, no high-profile decisions issued, there was a notable 5-4 decision that gave an important win to people fighting Alabama over what they claim are illegal delays in processing unemployment benefits.

I highlighted that decision — and mentioned the other decisions — in this note: