Last week, Thomas Edsall penned a column for the New York Times, "The Supreme Court Has Finally Found a President It Likes," arguing that the Supreme Court's conservative majority "has become a key enabler of President Trump's agenda." The column repeated (albeit in somewhat exaggerated form) common critiques of how the Supreme Court has handled requests for extraordinary relief from the Trump Administration, and in the process painted quite a distorted picture of the Court and its actions. (For my prior take on these questions, see here and here.)
Harvard law professor Jack Goldsmith, in his latest Executive Functions post, "Sense and Nonsense about the Supreme Court Interim Orders," takes aim at the Edsall piece, and some of its most severe distortions. As Goldsmith notes, Edsall frames his entire piece with Adam Bonica's claim that the Supreme Court is in "open conflict with the lower courts," siding with the Trump Administration in 93.7 percent of cases while district courts ruled against the administration 94.3 percent of cases. Nonsense.
"There are many things wrong with these numbers," Goldsmith notes. For starters, Bonica cherry-picks numbers, looking at different time periods and sets of cases to calculate the numbers. Further, Bonica takes no account of the fact that neither set of cases is neutral; both are the result of strategic choices by the litigants. As Goldsmith notes, the Trump Administration has only sought Supreme Court review of a small fraction of adverse district court orders.
