Circuit Justice Kagan Never Bothered Calling For A Reply In Trump v. AFGE

The District Court succeeded its TRO with a PI, rendering the government's application moot.

The Circuit Justices do not apply uniform rules when it comes to emergency applications. Justice Jackson, for example, refused to promptly call for a response in Libby v. Fectau, a case where the majority ultimately granted emergency docket relief.

I have also been keeping my eye on Trump v. AFGE. On May 9, A federal district court issued a TRO against the Trump Administration to block the removal of certain employees. On May 16, the Solicitor General applied for an emergency stay with Circuit Justice Kagan. And Kagan did absolutely nothing. She didn't even call for a reply.

On May 22, the District Court entered a preliminary injunction, which the government promptly appealed. On May 23, the Solicitor General filed a letter with the Supreme Court, withdrawing the stay application. The short letter states:

On May 16, 2025, we filed in the above-captioned case an application for a stay of an order issued on May 9, 2025, by the United States District Court for the Northern District of California. Labeled as a temporary restraining order, that order barred numerous executive-branch agencies from taking various actions related to an executive order and guidance memorandum concerning federal agencies' reductions in force. The order also directed the disclosure of certain deliberative executive-branch planning documents. Yesterday, May 22, the district court issued a preliminary injunction succeeding its temporary restraining order. Today, the United States filed a motion in the United States Court of Appeals for the Ninth Circuit to stay that new order pending appeal. In light of those developments, the United States withdraws its May 16 stay application in this Court.

I think I figured out what happened here. Justice Kagan realized that the District Court would almost certainly replace the unappealable TRO with an appealable PI. So she didn't lift a finger. She would rather wait for the normal appellate process to play out in the Ninth Circuit. Apparently, Justice Kagan did not think much of the government's urgent desire for a ruling.

As a practical matter, Kagan's delay extends by at least a month how long the government would be subject to an injunction. There isn't even the chance for an administrative stay. This case illustrates how much power and discretion the Circuit Justice has.

One of my proposals for bilateral judicial reform is to rotate the circuit justices annually. How is it fair that Justice Kagan always has authority over the Ninth Circuit while Justice Alito always has authority over the Fifth Circuit? Neither Justice has any geographic ties to the area. These should shift every year. And while I'm on the topic, the Court should consider a standard timeline for responses with emergency applications. It seems unfair that individual Circuit Justices can game the system.

Comments

[Lee Moore]

I was wondering why it took from May 9 to May 16 for the government to file its stay application with the Supreme Court. Turns out the 9th Circuit was sitting on it.

But given the recent precedent of the 42 minute thing where SCOTUS moved like Superman in a hurry, why didn’t the government give the 9th an hour on 9 May and then apply to SCOTUS on 9 May ?

[David Nieporent]

But given the recent precedent of the 42 minute thing

Still lying; there was no "42 minute thing," as SCOTUS explained quite clearly. It was 14 hours.

why didn’t the government give the 9th an hour on 9 May and then apply to SCOTUS on 9 May ?

Because even this administration would have found it hard to argue with a straight face that there was irreparable harm if it couldn't fire a lot of people within a few hours.

[not guilty]

I hope that SCOTUS took the application for partial stay in the birthright citizenship cases to provide future guidance for what does or does not constitute an "emergency" worthy of consideration on the shadow docket in civil cases (and perhaps in noncapital criminal cases). It is a rare case where a government defendant will suffer irreparable harm absent immediate intervention by SCOTUS. (In the birthright citizenship cases in particular, any claim that the feds will suffer irreparable harm from having to follow the law as it has stood for 127 years is ludicrous.)

[santamonica811]

I think the idea of randomly assigning the circuit Justices rotation is a good one, and should be done annually, or every [fill in the blank] months. When they move to an 18 year term for Justices, I hope there will be a calm, measured, look at a bunch of other ideas, and hope that people will be willing to enact several of them. Josh's suggestion here being one of the good ones, I think. (Yes, I know; me agreeing with Josh is one of the signs of the Apocalypse. Smoke 'em if you got 'em, boys!)

[Lee Moore]

Why does it have to be filtered through one Justice ? Why not just have a duty Justice for all applications each day ? If they don’t get round to doing something, tomorrows duty Justice can pick it up.

[Dr. Ed 2]

I agree. They stopped riding circuit how many decades ago?

And imagine the outcry if Thomas were to do what Kagan did...

[David Nieporent]

I would think the answer to that would be readily apparent: to prevent judge shopping.

[Lee Moore]

Not logical, Captain. Recall that in all of these cases, the appeal to SCOTUS will necessarily be by the defendant (usually the government) - the litigant who has already been judge shopped against by the plaintiff at District and Appeal Court level.

Basically you have it backwards. The allocatioon of all appeals from one Appeal Court to a particular Justice means that you know it's coming to Kagan, from the 9th - so then you can judge shop all the way up the chain. But if Kagan doesn't have a monopoly on applications from the 9th you can't judge shop that stage. Likewise with Alito and the 5th Circuit.

[Glaucomatose]

It depends how the "duty Justice for all applications each day" were implemented. If you knew today was an Alito day and tomorrow was a Kagan day, depending on the relief you were seeking you'd either file today or tomorrow. If not, then that wouldn't be a problem.

For what it's worth, I agree with the gist of the comments here that there should be a way to fix this vs. the current system, which does invite some mischief/gaming. Maybe the answer is something along the lines of what you're suggesting, you'd just need to figure out how to do it as a black box so nobody knew who they were getting.

[Lee Moore]

I'm not sure the black box is necessary here. If the Justices are on duty in strict rotation and you know Alito is up on Monday, and you wish to avoid him, then you can indeed file on Tuesday and get Kagan who you prefer.

But what can she do ? She can either set the wheels in motion, or she can do squat. Since you prefer her, and you're the appelant, that implies you lost below and you want her to do something (ie we're assuming you're a Dem administration and you have been stymied by that wicked ol' Kacsmaryk supported by the 5th Circuit.) So she'll probably set the wheels in motion. But all she can actually do is bring the thing before SCOTUS quickly - assuming there are four Justices who want to hear the motion. By picking her, all you achieve is a chance that SCOTUS will stay the injunction against you or whatever it is.

If you're unlucky and the rotation doesn't get to a friendly Justice for 5 days, and the first 4 do squat .... you can still get something done on the 5th day.

There's no mischief in the rotation being known, because ultimately it's about SCOTUS being able to take the case, fairly quickly, if they want to. Or not if they don't want to.

The mischief in the current system is that one Justice can keep it away from SCOTUS for a considerable period, even if four, or more, Justices want to consider it.

The practical point of having a Justice overseeing applications (either day by day for the nation, or by Circuit) is to filter out dreck that is never going to get four Justices wanting to hear it. But the current system also allows a single Justice to filter out non-dreck, because he or she is a monopolist. A rotation breaks the monopoly - but it still allows dreck to be filtered. Because if it's dreck, the other Justices will also do squat with it on their duty day.

PS - besides which the rotation could never be kept secret from litigants. If the actual judgements can be leaked so can the rotation. And more safely as you don't need to publish the leak, just get it to your pals.

[bernard11]

Could you just pick a Justice's name out of a hat for each circuit each morning?

[Lee Moore]

It's a nice thought, but I'm not that cruel. Not quite.

Judges strike me, on the whole, as possessors of rather orderly personalities. They probably like to stick to a schedule. Poor Amy would have a nervous breakdown.

[David Nieporent]

But all she can actually do is bring the thing before SCOTUS quickly

No, she can deny the application.

[Lee Moore]

What a tiresome fellow you are. I already said that :

"She can either set the wheels in motion, or she can do squat."

I then discussed what she could do .... if she was on the appelant's side. And the only thing she could do to help the appelant is to try to move it along quickly.

[David Nieporent]

Even in the cases where the plaintiff has discretion — which is not that high a percentage — nobody is deciding where to file a lawsuit based on who the circuit justice is. That's too far removed from the actual litigation, and the circuit justices have less power than Blackman pretends.

[jb]

Agreed. Josh is annoying and a partisan hack, but this seems like a good idea.

[David Nieporent]

I think the idea of randomly assigning the circuit Justices rotation is a good one, and should be done annually,

I don't understand the problem this is supposed to solve. Josh claims that it "seems unfair," but he doesn't explain who it's unfair to or why. (It wouldn't address one of the topics discussed below, about justice shopping, except for cases filed in December, or whatever the end of year chosen before the random reassignment is.)

[Mark N.]

Sounds like Kagan may be following the advice of some legal scholars to kick more of these emergency stay cases to the merits docket and avoid handling them on the emergency docket. Especially where, as here, that can be done by just sitting on the case for one week. https://www.stevevladeck.com/p/147-the-increasingly-overloaded-emergency

[Michael P]

That is, of course, bad advice in that it encourages district court judges to run rampant. That's presumably the desired effect.

[Lee Moore]

So, good advice then 🙂

I enjoyed Vladeck’s even handed “unprecedented lawlessness” by Trump against “unprecedented pushback” by the Dem judges.

Mark N’s “some legal scholars” was good too.

[David Nieporent]

As I mentioned in another thread yesterday, the fact that Trump loses so much in court seems to have caused his followers to come up with this weird notion that district court decisions aren't 'real,' that they're just kind of preliminary sneak previews until the circuit courts (and/or SCOTUS) can rule. And therefore any district court cases which go against Trump should just be stayed as a matter of course. But the mere possibility that a judge might be overruled is absolutely not a legitimate rationale for a stay.

Virtually nothing that Trump is asking SCOTUS for emergency stays on is an actual emergency. This case is a perfect example. Right or wrong, there's no reason the district court's decision here can't be handled by the ordinary appellate process.

[Michael P]

Abuse is always very real, David. You might think you are being cute or clever by DARVOing again, but you're ignoring that almost all of these TROs grt mandamused, or overturned on appeal once they become PIs. Blocking simple, legal government policies for months or years is not the way things should work -- except to people who want to break this country.

[Sarcastr0]

Almost all?
Months or years?
Simple and legal?

This here is a smorgasbord of ipse dixit and question begging.

[Glaucomatose]

"Almost all" of them? Really?

And of course blocking simple, legal government policies for months or years is not the way things should work. This is about blocking the illegal ones - or, more relevant to the standards of a preliminary injunction, the ones for which the likelihood of imminent harm to the moving party is sufficient, combined with their likelihood of success on the merits, to justify a maintaining the status quo until the court can properly assess their legality.

[y81]

"simple, legal government policies": does that include the actions which Prof. Volokh has described as "violat[ing] the First Amendment"?

[Michael P]

The same people who complain about emergency relief from unreasonable TROs and PIs of course strongly defend those, rather than expecting rulings against the government to go through the normal merits and appeals processes.

How predictably stale.

[Sarcastr0]

There is no rather than.
Even pretending TROs aren’t normal, they are to give the court time to tee up what you call the normal merits and appeals processes.

[David Nieporent]

This. It's simply not symmetric; in the vast majority of cases, the TROs/PIs serve to freeze the status quo while the merits of govt proposals are being assessed, while the stays of those orders allow those proposals to go into effect before anyone has determined whether they're lawful.

[Lee Moore]

You are slithering past a different asymmetry.

Before the merits are decided, we don't know whether the government's actions are lawful or not. By freezing things with a TRO, the judge may be :

(a) either saving the movant from unlawful government actions, or
(b) preventing the government from proceeding with lawful actions

The law contains a quid pro quo. If the judge is going to freeze things and risk creating a (b), he is obliged to order the movant to put up security for the government's costs and damages, if it should turn out, when the merits are explored, that the judge has prevented the government from proceeding with lawful actions and costs and damages have accrued.

But have the judges actually being doing that ? Or have they been ignoring the quid pro quo required ? The clause that got slipped into the Big Beautiful Bill that was discussed here suggests that they've been ignoring it.

How many of the TROs have involved the movant putting up actual security ?

[Sarcastr0]

Your concern about government costs and damages is one sided.

It seems you have an assumption of irregularity about the courts, and of regularity for the government.

[Lee Moore]

Hopeless. The alleged irregularity of the government is what is being litigated. It isn’t established until the merits are finally decided.

Meanwhile the TROs are explicitly conditioned by the law on security.

So do you have an answer - how many of these TROs have required the movant to put up security ?

[David Nieporent]

Before the merits are decided, we don't know whether the government's actions are lawful or not. By freezing things with a TRO, the judge may be :

(a) either saving the movant from unlawful government actions, or
(b) preventing the government from proceeding with lawful actions

No; (b) is delaying the government from acting, not preventing the government from acting.

[David Nieporent]

almost all of these TROs grt mandamused, or overturned on appeal once they become PIs.

Yes, but I'm ignoring that because it's utterly false.

Purple Martin summarized it here yesterday. Less than 25% are blocked or overturned.

Blocking simple, legal government policies

Consider the question begged.

[Speaking for normal people]

To a normal person it sounds like she did something wrong and unethical.

[David Nieporent]

What about a normal intelligent person?

[Magnus Pilatus, MBA, MD, JD, PhDx2]

How the fuck would you know what that was?

[David Nieporent]

Ooh, good one. You got me!

[Frank Drackman]

As the late great Jewel Kilcher said,
sometimes it be that way.

[Drewski]

It's pretty obvious there was no actual emergency here that warranted immediate relief. The Court has no duty to dignify the administration's hyperbolic rhetoric with a response.

It's fun seeing Josh advocating for a "standard timeline" after arguing, at tiresome length, that the justices cannot create binding ethics rules. If they can't say, "Stop taking bribes, Clarence," then they can't say, "Circuit justices have to respond to every emergency application immediately."

[Dr. Ed 2]

And when Clarance does exactly the same thing that Elana did?

Funny how there was no mention of him until RBG died isn't it?

[David Nieporent]

Is this in English?

[Frank Drackman]

I think it's authentic frontier gibberish

[Glaucomatose]

In fairness to Ed, I can only find 7.79 million Google search results for Clarence Thomas if I limit my search window to the period from 1980 to the day before RBG died.

[Noscitur a sociis]

Clarance

Elana

What is wrong with you?

[Spinach Chin]

Do you mean all 0 bribes Thomas took?

[dwb68]

I guess I wonder whether it matters: One district judge in CA says the govt may not take RIF personnel actions while another allows it. Ultimately, the RIF is happening (and has already happened) no matter what the CA district judge says.

[SRG2]

Alternatively...

Circuit Justice Thomas Declines to Call For A Reply In Trump v. AFGE

The District Court succeeded its TRO with a PI, rendering the government's application moot.

Josh Blackman | 5.25.2025 2:45 AM

The Circuit Justices do not apply uniform rules when it comes to emergency applications.

I have been keeping my eye on Trump v. AFGE. On May 9, A federal district court issued a TRO against the Trump Administration to block the removal of certain employees. On May 16, the Solicitor General applied for an emergency stay with Circuit Justice Thomas. Thomas, correctly did nothing and didn't even call for a reply. because there was no emergency.

[Riva]

Good idea. And make the lazy bums run the circuit again.

But the real lesson here is that judges, and justices, are not apolitical. In fact, they quite openly exploit their power to further their political interests. Like Kagan here. I suggest that this is “bad behavior “ that should at least merit an investigation on whether removal from the court is warranted. This would cause an immediate correction, and a lot of whining hysterics I’m sure.

[Riva]

In fact I think there might be a strong case. This definitely doesn’t exemplify the Good Behavior required of someone holding her office.

[Glaucomatose]

Sure, go ahead and suggest that, and see how far you get. I'm sure fourteen Democratic senators will be jumping at the chance to remove a justice from the Supreme Court for not jumping through hoops to allow Trump to fire hundreds of thousands of federal employees without Congressional approval as quickly as possible.

[Riva]

Notwithstanding the democrat party's obsession with impeachment, they don't control the process. That is especially true for democrat senators.

[Glaucomatose]

Okay, as soon as you can get two-thirds of the Senate to agree on removing Kagan, without getting any Democratic senators on board, you can remove her. Deal?

[Riva]

Impeachment begins with the House. Even an investigation would send the message to the judiciary that they better self-correct. An actual impeachment would be even better. Removal in the Senate is never guaranteed. And such concerns were of no interest to democrats when they decided to pursue 2 meritless cases against the president.

[Spinach Chin]

It's a good thing that Congressional approval is not required to fire Executive branch employees.

[Glaucomatose]

Not sure why you think this assertion is relevant to a question of removing a Supreme Court justices from the Court, but you do you.

[Riva]

Investigate, impeach, and then remove. You're fixated like a broken troll record on a guaranteed removal as being a prerequisite to the House even investing judicial misconduct that may merit impeachment. If a strong case for removal is presented to the Senate, let the democrat senators disgrace themselves even more by opposing it. It's their specialty.

[Glaucomatose]

It's guaranteed non-removal. And as Trump has demonstrated quite convincingly, an impeachment vote in the House followed by an acquittal in the Senate does precisely fuck-all to dissuade anyone who doesn't think they've done anything wrong.

[Riva]

Beg to differ little troll. You're scared of it. And, being a political hack frightened by the NY Times, Roberts would be in panic mode, as would Kagan, and the lower court political cowards.

[David Nieporent]

Bot is malfunctioning again. It's spewing random words in a random order. It is, of course, not "bad behavior." It's entirely ethical and proper procedure. Justices have no ethical or legal obligation to call for responses to meritless requests for stays. Now, applying for the stay could rightly be called "bad behavior," since there was no emergency, but that was by the administration, not Kagan.

Assuming — for the sake of argument — that the administration's firing these govt employees was legal, and further assuming — for the sake of argument — that firing these govt employees was a good idea, two extra weeks before it took effect would make absolutely no difference to anyone, other than perhaps to the ego of the Mad King being told he couldn't do what he liked on a whim.

[Riva]

And speaking of a broken troll record, here we have one that is obsessed with bots like Jeffrey Toobin during a Zoom conference. I'm just grateful there's no video here crazy Dave.

[y81]

Prof. Volokh has noted how lawyers turn everything into a procedural question, but Prof. Blackman has an exceptionally jejune version of that tendency: whenever there is a decision he doesn't like, he complains about the speed with which it was rendered; it's always too slow or too fast. Either the judge didn't read the papers, or she sat on them too long. Maybe each motion from now on should be given first to Blackman to assign a "Blackman number" which would indicate the exact number of hours the judge has to render a decision, no more and no less.

[Glaucomatose]

Now, now. Blackman is one of the most june people in all of the Russias.

[Riva]

Now we're redoing the Russian collusion fraud? I understand now. You're simply an idiot.

[damikesc]

WH needs to state, clearly, that they will only abide by TRO's that are passed by a majority of SCOTUS justices.

Otherwise, it gets ignored as it should be.

[David Nieporent]

Should we, or should we not, listen to the guy who thinks that justices "pass" anything, let alone TROs?

[thesafesurfer]

Thank you Professor Blackmon for giving a specific example that illustrates America's desperate need for prompt judicial reform.

[xutag77]

Where is the senator or congressman of the litigant?

[CashCrane]

We are long past the time where any and all Federal
Employees should not be treated as armed criminal threats to Americans and their civil rights.

The Ashley Babbitt Trespassing Penalty is now our friend. They say it is legal. Trespass where WE say they cannot go and refuse to immediately obey our commands is grounds for summary execution.

This ends when they and their families live in terror of us.