A new trend in Supreme Court decisionmaking has picked up since the start of Donald Trump’s second term as President. The Administration has made extensive use of the Supreme Court’s “shadow docket,” making numerous applications for emergency stays of lower-court injunctions against executive orders and actions, and by and large, the Supreme Court has acquiesced in granting those stays. A key reason for this phenomenon is the idea, first advanced by the Court in 2012 but expanded upon in 2025 in Trump v. CASA, that the government is “irreparably harmed” whenever one of its actions is enjoined by a district court. Since the CASA decision in June 2025, this “irreparable harm to the government” doctrine has been relied upon extensively by the Administration in its applications for emergency relief, and by the Court in its decisions granting such relief.

Analysis of the Court’s recent decisions unearths multiple important takeaways about their use of “irreparable harm to the government.” First, the justifications for this doctrine generally do not apply to the kinds of actions for which the Administration has been seeking emergency relief in 2025—in other words, they do not provide legal cache to the idea that the government is always irreparably harmed by an injunction. Second, in the broader context of the four-factor Nken balancing test that is meant to govern when a stay is granted or denied, the Court’s 2025 decisions have generally incorporated this flawed view of “irreparable harm to the government” into the balancing, tipping the scales in the government’s favor and placing the burden on the respondent to prevail clearly on the merits.

The Court has placed a thumb on the scale in the government’s favor and stay balancing on the shadow docket has now become a fait accompli: the Trump Administration will nearly always win, and that is in large part because of the regrettable rebirth of “irreparable harm to the government.”

Continue reading The Regrettable Rebirth of “Irreparable Harm to the Government.”