The Supreme Court on Friday declined temporarily to intervene in a fight over restrictions on speech by immigration judges, ending the Trump administration’s months-long winning streak in emergency cases before the courts.
This is the first time since spring that the court has rejected the government’s emergency appeal. No justices have publicly expressed dissent, but the order opens the door for the government to revisit the case if it progresses further.
“At this stage, the government has not demonstrated that it will suffer irreparable harm without a stay,” the one-paragraph order reads.
The case stems from restrictions on immigration judges’ public speech. The restrictions require judges who belong to the executive branch to obtain prior approval when speaking on topics directly related to their official duties.
The National Association of Immigration Judges (NAIJ) claims the policy violates the First Amendment.
However, these free speech issues have not yet been brought before a judge.
The Trump administration went to the Supreme Court to block an order that would have allowed a federal district judge to proceed with the lawsuit. The government believes it must be referred to the Merit Systems Protection Board (MSPB), a professional body that oversees certain federal employee disputes.
The issue also has broader implications for the cases of other federal workers. Deputy Attorney General D. John Sauer told the judge that a lower ruling would “hinder the MSPB indefinitely.”
“The answer to so many violations of court precedent should not be to wait and see the level of instability that ensues,” Sauer wrote in court papers.
Lower courts recognized the MSPB’s authority. But in allowing the lawsuit to proceed, it noted that President Trump fired the board, which resulted in a period without a quorum, and said that raised “serious questions” about whether the MSPB “continues to operate as intended.”
NAIJ asked the Supreme Court to reject the government’s request.
“The Supreme Court was right to deny the government’s request to stay the lawsuit,” Ramya Krishnan, a senior attorney at the Knight First Amendment Institute representing NAIJ, said in a statement.
“It should also quickly deny the government’s upcoming petition for certiorari,” Krishnan said, referring to the government’s expected request for a judge to hear the case on the regular docket. “This restriction on the free speech rights of immigration judges is unconstitutional and it is intolerable that this prior restriction remains in place.”
Friday’s order marks a rare defeat for the Trump administration in an emergency Supreme Court case.
Since Trump returned to the White House, the administration has submitted 32 emergency applications to judges. The government says the staggering number is the result of a federal district judge overstepping his authority to block Trump’s agenda, while the president’s critics say it reflects his lawless behavior.
Several of those applications are still pending or have been withdrawn, but the Supreme Court has almost always sided with the Trump administration in its rulings so far.
Updated at 4:18 p.m. ET
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