A new trend in Supreme Court decisionmaking has picked up since the start of Donald Trump\u2019s <\/i>second term as President. The Administration has made extensive use of the Supreme Court\u2019s <\/i>\u201cshadow docket,\u201d making numerous applications for emergency stays of lower-court injunctions <\/i>against executive orders and actions, and by and large, the Supreme Court has acquiesced in <\/i>granting those stays. A key reason for this phenomenon is the idea, first advanced by the Court in <\/i>2012 but expanded upon in 2025 in <\/i>Trump v. CASA, that the government is \u201cirreparably harmed\u201d <\/i>whenever one of its actions is enjoined by a district court. Since the <\/i>CASA decision in June 2025, <\/i>this \u201cirreparable harm to the government\u201d doctrine has been relied upon extensively by the <\/i>Administration in its applications for emergency relief, and by the Court in its decisions granting <\/i>such relief.<\/i><\/p>\n
Analysis of the Court\u2019s recent decisions unearths multiple important takeaways about their use <\/i>of \u201cirreparable harm to the government.\u201d First, the justifications for this doctrine generally do <\/i>not apply to the kinds of actions for which the Administration has been seeking emergency relief <\/i>in 2025\u2014in other words, they do not provide legal cache to the idea that the government is always <\/i>irreparably harmed by an injunction. Second, in the broader context of the four-factor <\/i>Nken balancing test that is meant to govern when a stay is granted or denied, the Court\u2019s 2025 decisions <\/i>have generally incorporated this flawed view of \u201cirreparable harm to the government\u201d into the <\/i>balancing, tipping the scales in the government\u2019s favor and placing the burden on the respondent <\/i>to prevail clearly on the merits.<\/i><\/p>\n
The Court has placed a thumb on the scale in the government\u2019s favor and stay balancing on <\/i>the shadow docket has now become a<\/i> fait accompli: the Trump Administration will nearly always <\/i>win, and that is in large part because of the regrettable rebirth of \u201cirreparable harm to the <\/i>government.\u201d<\/i><\/p>\n
Continue reading The Regrettable Rebirth of “Irreparable Harm to the Government.”<\/em><\/a><\/p>\n