Editor's Note: This article originally appeared in Executive Functions.

Thomas B. Edsall’s New York Times op-ed last week, The Supreme Court Has Finally Found a President It Likes, argued that the Supreme Court in its interim orders has acted without principle to enable the destructive Trump administration. One can have legitimate gripes about the Court’s interim orders related to the presidency—I will discuss a few at the end of this essay. But first I want to address some of the ways the Edsall piece misinforms.

The Numbers

Edsall opens with some arresting claims from Adam Bonica:

“[From May 1-June 23], federal district courts have ruled against the administration 94.3 percent of the time,” Adam Bonica, a political scientist at Stanford, wrote in a June 25 Substack essay. “The Supreme Court, however, has flipped that outcome, siding with the administration in 93.7 percent of its cases. The Supreme Court is now in open conflict with the lower courts over cases involving the Trump administration.”

District court judges “who see the evidence firsthand and hear directly from those affected,” Bonica added, “overwhelmingly find the administration’s actions unlawful. Circuit (Appeals) courts split more evenly (68.2 percent against Trump, 31.8 percent for Trump) but still lean against the administration. Then the Supreme Court — furthest from facts, closest to power — reverses almost automatically.”

Bonica derives the 93.7 percent figure from the Supreme Court’s sixteen “rulings on Trump administration policies or actions,” fifteen of which he says favored the administration.

There are many things wrong with these numbers.

First, the Supreme Court did not issue 16 Trump-related interim orders during the May 1- June 23 period in question; it issued eight (see here, here, here, here, here, here, here, and here). Bonica appears to be comparing the (unexplained) short period of district court decisions from May 1-June 23 with Supreme Court interim orders from February-June 23.

Second, the Supreme Court in the eight decisions during the May 1-June 23 period reviewed (at most) only two district court decisions that were decided in that period. I say “at most” because in one, U.S. Doge Service, the Court ruled primarily on an April 15 district court order (and then in the end on a related May 20 order). And in the other, D.V.D., the Court ruled on an April 18 district Court order and then later clarified that order in connection with a May district court order. So it is deceptive to say that the Supreme Court “flipped [the] outcome” in the 87 cases (or in 93.7% of them) during the seven-week period where “federal district courts have ruled against the administration.” It flipped the outcome at most (and this is generous) in two of those 87 decisions—2.3%.

If we expand the lens and look at every Trump-related Supreme Court interim order this year (including ones after Bonica’s June 23 end date) that considered a district court decision during the May 1-June 23 period, we find three more decisions. Thus at most (again, this is generous), the Court “flipped [the] outcome” on the May 1 - June 23 district court decisions in 5/87 cases, or 5.7%. This is not open conflict.

This analysis points to the most fundamental problem with Bonica’s efforts to draw inferences from the Court’s Trump-related interim orders. The Court reviews only applications filed by parties. The Solicitor General seeks interim relief when he thinks the chances of success are relatively high. As Steve Vladeck explained in June, there are “literally dozens of adverse rulings by district courts that the Trump administration has been willing to leave intact—either by not appealing them in the first place, or by not pushing further after being rejected by courts of appeals.” (By my count that number is around four dozen right now.)

Vladeck made this point to rebut the claim that the district court rulings in the round are flawed. And it was a fair point. But the same pattern shows that the Supreme Court is ruling only on cases where the Solicitor General thinks (among other variables) that the lower court reasoning is relatively weak. When Bonica says that the Supreme Court “reverses almost automatically,” he is ignoring the crucial fact that the Court sees only a fraction of lower court rulings, and then only ones that are skewed for likely government success.

Bonica and the New York Times are committing a variant of the empirical analysis sin of “testing on the dependent variable”: they draw sweeping conclusions from a subset of cases that is small, highly unrepresentative, and unexplained. Other critical claims in the Edsall piece ignore this fundamental point.

The Unitary Executive

Edsall next cites Bonica and Joseph Fishkin claiming that the Supreme Court is applying unitary executive theory in an unprincipled manner—one way for the Biden administration, and another for the Trump administration. Fishkin says:

[T]he most consequential decisions of the court in a unitary-executive direction are on matters like firing the heads of agencies set up by Congress to be independent of control from the White House, where Trump is the only modern president to really try it. You cannot point to all the heads of independent agencies the court refused to let Biden fire, because Biden and other presidents respected the laws Congress passed in this area, an approach that served the country well. We are now in uncharted waters.

We are not in uncharted waters. And the Trump administration is not “the only modern president to really try” to fire heads of independent agencies. The Biden administration did so too, and first. The Biden administration did not, as Fishkin says, “respect[] the laws Congress passed in this area.” As I wrote in the Times in May: “Mr. Biden extended the Supreme Court’s unitary executive case law to fire the statutorily protected commissioner of the Social Security Administration.” Biden also fired other for-cause-protected agency members in disregard of congressional statutes and in reliance on Supreme Court unitary executive decisions. These are some of the reasons why Mark Joseph Stern in 2021 described Biden as “the first unitary executive.”

The Trump administration has been far more aggressive than Biden in implementing unitary executive theory, and several of the Court’s interim orders involve executive branch firings that directly or indirectly implicate the theory. My point is simply that this view of executive power is not nearly as outré as Edsall suggests (read this Biden OLC opinion) and does not implicate powers exercised only by Trump.

Serious Complaints

Edsall’s piece does address two serious complaints about the Court’s interim orders. One is that the Court’s continued embrace of unitary executive theory in its interim orders is allowing the Trump administration to do destructive things. The second is that the Court does not adequately explain its interim orders.

On the first point, I still think it is too early to say where the Court will come down on the scope of the president’s unitary executive powers in Trump 2.0. The order in Wilcox was surprisingly ambiguous and tentative on this issue, suggesting that there is a split among the conservatives on where the line should be drawn. And as Zachary Price explains, the Court’s most recent merits statement in the vicinity of unitary executive theory, in Braidwood, rejected an absolutist view, with Justices Thomas, Alito, and Gorsuch in dissent.

That said, the Court’s interim orders, influenced by its view of likelihood of success on the merits, has enabled Trump to change the reality on the ground in the executive branch in ways that will not be easily reversible, if at all, no matter what the Court does later. In January, I believed that the Court would moderate its unitary executive stance due to Trump’s extreme implementation; at least for now, I appear to have been wrong.

I addressed the second point in this essay on interim orders, so I will be brief. There is nothing illegitimate or new about the Court not explaining interim orders, even important ones. Interim orders are not final judgments. They resolve the “interim status of the law” during the months or years of adjudication in a case until final disposition by the Supreme Court. More explanation on interim rulings can help the Court convince the public that it is properly applying law to fact (though the explanations of its application of the interim order test often fail to persuade simply because the test is so indeterminate).

But I doubt the critics would be pleased with the more elaborate explanation for rulings they do not like. And there are tradeoffs. Mainly: the more the Justices write, the more they prematurely lock themselves in on the merits down the road, and the more they handcuff the lower courts via vertical precedent. My conclusion: “Like everything else in connection with interim orders, there is no escaping these tensions, which can only be managed contextually.”

Conclusion

The bottom line with the Court’s interim orders is that—surprise, surprise—the Court has a different outlook and agenda than Edsall and the eleven progressive scholars he cites. In the skewed sample of cases it has seen, the Court has largely sided with Trump. Yet it is also true that even with the skewed sample, the Court has pushed back on the administration in important areas (most notably in immigration cases), many of its decisions concern procedural or venue issues that do not concern executive power, and several of the “pro-Trump” decisions were joined by at least one progressive Justice.

The Court also has a different timetable and different aims than the scholars. As I argued in the longer essay, the Court is not only in the business of pushing back on the Trump administration. It is also trying to corral lower federal courts, not all of which are always right (to put it mildly) in their assessment of the legality of Trump’s program. And it is trying, more broadly, to ensure its own supremacy vis a vis both the president and the lower courts. The Court went slow in engaging the first Trump administration, mainly via interim orders and then later more aggressively in merits decisions. One view is that it is doing basically the same thing again—“temporizing”—in its early Trump 2.0 interim orders.

The federal judiciary is the only governmental institution with the potential now to slow the Trump juggernaut. So it is understandable why many people who nine months ago wanted to delegitimize the Supreme Court and chop down its power now want it to stand up more aggressively to the minatory president. The Court has not yet faced the hardest merits questions posed by the Trump administration, and it surely will slow the Trump train with respect to its obviously illegal actions, such as the birthright citizenship executive order.

But it is vitally important to understand that the Court alone cannot and will not stop Trump. It won’t do so because it believes, not implausibly, that much of what Trump is doing is lawful. And it cannot do so because many of Trump’s illegal actions —the extortion, the nonenforcement of disliked law, most if not all of the corruption—cannot be redressed through judicial review.

The reality is that only politics can slow most of the Trump program.