On the Supreme Court’s Emergency Docket, Sharp Partisan Divides

Justice Brett M. Kavanaugh says good judges are like good referees.

“Am I calling it the same way for labor and management, for the business and the environmental interests, for the Republican and the Democrat?” he asked at a judicial conference over the summer. “If you can’t look in the mirror and say, ‘I would do the exact same thing if the parties were flipped,’ then you’re not being a good judge, just like you wouldn’t be a good referee if you were favoring one team over the other.”

A look at the court’s record in emergency rulings does not appear to reflect Justice Kavanaugh’s goal.

Drilling down to individual justices’ votes rounds out the group portrait.

In the 17 cases in which the Biden administration sought emergency relief from the Supreme Court over four years, for instance, Justice Kavanaugh voted in its favor 41 percent of the time, according to an analysis prepared for The New York Times by Lee Epstein and Andrew D. Martin, both of Washington University in St. Louis, and Michael J. Nelson of Penn State.

By contrast, in the 19 cases in which the court has ruled on applications from the second Trump administration, Justice Kavanaugh voted for the administration 89 percent of the time. That amounted to a 48-percentage-point gap in favor of President Trump.

(The analysis ignored withdrawn applications, treated consolidated cases as a single decision and counted orders granting the president partial relief as a victory. It is also theoretically possible that there were dissenting votes in some of the cases that were not made public.)

Testing whether the justices are treating Democrats and Republicans alike presents challenges, as the cases that reach the justices present varied legal issues based on distinctive facts. But a comparison of the court’s treatment of emergency applications, in particular, can be telling.

The justices rule on such applications quickly and almost always without hearing oral argument. Their rulings are provisional, lasting only while the cases proceed through the courts for a final decision. But they can remain in effect for a year or more, meaning they have significant impact and sometimes effectively resolve the disputes.

Rulings on emergency applications filed by the government, moreover, tend to present the same essential questions: how much deference is due the president and whether temporarily blocking a government program challenged as unlawful would cause more harm than letting it proceed.

In their public appearances, the justices try to counter the perception that they favor the agenda of the party of the president who appointed them by noting the many unanimous decisions they issue in argued cases, along with ones featuring unusual coalitions.

The emergency docket presents a different portrait of the court, one in which partisan affiliations map onto voting patterns quite closely, reinforcing the declining public confidence in the court reflected in opinion polls.

On the far right side of the court, Justice Samuel A. Alito Jr. voted with the Trump administration 95 percent of the time and the Biden administration just 18, for a gap of 77 percentage points.

On the far left, the size of the gap was identical, but in the other direction. Justices Sonia Sotomayor and Justice Ketanji Brown Jackson favored the Biden administration by 77 percentage points.

By those standards, Justice Kavanaugh’s voting was among the most balanced, though two members of the court had smaller gaps. Chief Justice John G. Roberts Jr. favored President Trump by 21 percentage points, followed by Justice Amy Coney Barrett, at 26 percentage points.

The cases the two administrations pursued were different, of course, making comparison inexact, and the concentrated volume and sheer ambition of President’s Trump’s applications dwarfed those of his predecessor. The court has so far, on a technically temporary basis, let him fire independent agency regulators, cut funding approved by Congress, dismiss transgender troops and remove protections for hundreds of thousands of migrants. Last week, the court allowed him to pursue aggressive roundups of people suspected to be in the country unlawfully.

Stephen Vladeck, a law professor at Georgetown, said there was a distinct ideological split in rulings on emergency applications filed by the two administrations. That is not always the case in argued cases, he said, which sometimes produce unusual alliances after the justices receive full briefing, hear oral arguments and draft long and careful opinions.

The court, as the justices will readily admit, does not do its best work when it must move quickly, and the volume of emergency applications has shifted much of its energy to such fast-moving litigation, often resolved in a matter of weeks instead of in a year or more, as is common for merits cases.

Despite the court’s conservative supermajority, the Biden administration did obtain relief in a slight majority of its emergency applications, including ones involving a commonly used abortion pill and “ghost guns,” which are kits that can be bought online and assembled into untraceable homemade firearms.

But victories like those were influenced by two factors.

Solicitor General Elizabeth B. Prelogar, like her predecessor in the first Trump administration and her successor in the current one, made strategic choices about which cases to bring to the court, generally choosing only ones with at least a fair prospect of success.

Second, more than two-thirds of the Biden administration’s emergency applications took on rulings from the U.S. Court of Appeals from the Fifth Circuit. Opponents of the administration’s policies and programs often filed challenges in that circuit, correctly anticipating that they would meet a favorable reception with its especially conservative judges. Still, those rulings often proved too conservative even for a generally conservative Supreme Court.

Moreover, in three cases in which the justices initially turned down the Biden administration’s requests for emergency interim relief from Fifth Circuit rulings, the administration ultimately prevailed when the cases were set down on the merits docket for full briefing and argument.

When the justices are moving fast, without a chance to forge consensus, legal experts said, partisanship may be more apt to influence outcomes. “Their rough-cut assessment and instinct is going to go against the Biden administration and for the Trump administration, even if that doesn’t necessarily track their ultimate disposition of the matter,” said Leah Litman, a law professor at the University of Michigan.

While true apples-to-apples comparisons are hard to come by, as the two administrations have pursued different policies, they were united in their opposition to universal injunctions, a tool federal district courts have used to shut down government programs nationwide.

The Biden administration repeatedly asked the Supreme Court to address the issue. The court’s response to one such request in October 2024 was telling.

When the Fifth Circuit issued a universal injunction blocking a program that helped forgive student debt, the administration sought review of two questions: whether the appeals court’s ruling was correct and whether it had “erred in ordering the district court to enter preliminary relief on a universal basis.”

The Supreme Court granted the administration’s petition. But it said it would consider only the first question, on the student debt issue. (The court ultimately dismissed the case last month.)

Five months after the Biden administration’s petition, the Trump administration asked the Supreme Court to address universal injunctions on an emergency basis in the context of rulings blocking its efforts to limit birthright citizenship. The court promptly agreed, put the case on a fast track and, in June, ruled for the administration, saying that federal district courts had been abusing such injunctions.

The three liberal members of the court dissented.

It is premature to draw larger conclusions about how the second Trump administration will fare at the Supreme Court. Its many victories arising from its second-term initiatives have so far all been in the context of emergency applications for interim relief, and it may face serious headwinds when the court considers cases on the merits.

On Tuesday, the justices agreed to hear challenges to Mr. Trump’s sweeping tariffs, and legal experts say he could well lose. Should the court agree to hear a direct challenge to the administration’s effort to limit birthright citizenship, as seems likely, it is also hardly assured of prevailing.

In general, Professor Epstein said that in cases involving the government, “partisan politics plays out far more in the emergency applications than in the merits cases.”

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