Brief Legal Update: SCOTUS Punts Till Next Week
I’d been expecting a ruling today from the SCOTUS on the firing of Hampton Dellinger, head of the "Office of Special Counsel". A DC court had issued a TRO that would require Trump to keep Dellinger on the job against Trump’s will. DoJ did an emergency appeal to the SCOTUS. Instead, the SCOTUS punted—but only until next week, when some moves will have to be made. The case could end up in front of the SCOTUS again in short order, after going through the DC Circuit’s Appellate Court. This looks like the SCOTUS wants a bit more time to see whether one of these challenges develops in such a way as to allow for a broader decision—perhaps by taking several cases together.
Here’s what’s been going on. First a general comment from Jonathan Turley:
Jonathan Turley @JonathanTurley
Another court has ruled against challengers of the reduction of the USAID workforce. https://apnews.com/article/trump-usaid-foreign-aid-staffing-cuts-lawsuits-d1ec029b4d14c37c25abc5dc07066471… As some of us have stated, the president clearly has authority for such reductions in force.
On CBS’s Face the Nation, Rep. Jamie Raskin (D., Md.) repeated the talking point of Democratic politicians and pundits that the courts are stopping President Donald Trump’s lawless acti…
I’ve long suspected that Turley has an intense dislike for the intensely unlikeable Raskin.
On to the SCOTUS:
Jonathan Turley @JonathanTurley
The Supreme Court is going to hold off until Feb. 26th [Wednesday] on the issue of firing of Hampton Dellinger, who heads the Office of Special Counsel. It was a curious punt in refusing to take action. It left justices on both the left and right unhappy with the result...
5:19 PM · Feb 21, 2025
Sonia Sotomayor and Ketanji Brown Jackson wanted to deny the application while Justice Neil Gorsuch and Justice Clarence Thomas wanted to grant it. That leaves five who clearly wanted this cup to pass from their lips -- at least for the moment.
That last bit doesn’t mean that the majority of five had no views—only that they thought waiting for a short time might be a good idea. In the next paragraph Turley expands on that idea, briefly.
The Court could still act. However, at most, this litigation will only likely alter the schedule, not the outcome. However, it is interesting that the other justices wanted to wait on these issues. This was the first such challenge to reach the court. The justices clearly want to pick the ground to rule on these developing conflicts.
Shipwreckedcrew weighs in and provides some additional detail on what could transpire between now and Wednesday—or shortly thereafter:
Shipwreckedcrew @shipwreckedcrew
Basically, there are only 3 [court] business days left.
The Court issues this non-decision on a Friday afternoon, when the TRO expires next Wed.
The District Court will need to either 1) let the TRO expire and deny the injunction or 2) convert the TRO formally into an injunction.
THEN, that will be appealable to the Circuit Court by whichever side is unhappy.
THEN, the Appeals Court will decide.
THEN, the SCOTUS can decide if it wants to step in based on what the Appeals Court decides.
All of that can happy pretty quickly after next Wed.
If there is an Injunction granted, the Govt can seek a stay pending appellate review.
5:53 PM · Feb 21, 2025
The way I read this, it looks like the majority on the SCOTUS may have wanted to give the district court a chance to get the decision right—by denying an injunction after the TRO expires on Wednesday. The idea would be that it’s preferable to allow cases to be decided correctly at the lowest possible level, rather than eat up SCOTUS time. That would also send a message to other courts that are involved in these matters. We shall see.
Perhaps:
5 people on SCOTUS would prefer not to rule in this, letting the lower court do their dirty work.
Or:
SCOTUS is hoping to consolidate multiple cases on Trumps executive power to fire people.
Trumps administration is teeing up executive authority cases, and I’m sure Roberts would prefer not to rule them. The danger for Roberts is if SCOTUS takes them up, and rules with a super high chance in Trumps favor, he would appear too pro Trump, in a company town dominated by bipartisan elite Trump hatred.
Roberts wants to keep the Court’s powder dry…let politics and the other courts do their jobs…this only gets to USSC if a decision goes against the Executive, or if a lower court cannot thread the needle on the distinctions between process, action and the different branches: just because Congress attempted to conflate powers by mixing Judicial with Executive in appointments and firings criteria, does not mean the Executive cannot take responsibility and thus action. Thomas likely wanted to take it to have court make a clear statement regarding executive actions.