Pressed on whether there was a sense of surprise within the White House at the administration’s success at the Supreme Court, the official said the counsel’s team, which includes litigators and former Supreme Court law clerks and is led by David Warrington, has been heavily involved at the front end of the policy process in order to craft orders they can legally defend.
The administration expects to be sued on everything, but the bigger surprise was how often lower-court judges had blocked executive actions, that official said.
“We do take into consideration the fact that some things are more of a priority versus others, and most of what we’re appealing is a priority,” the official said.
“The Trump Administration’s policies have been consistently upheld by the Supreme Court as lawful despite an unprecedented number of legal challenges and unlawful lower court rulings,” White House spokeswoman Abigail Jackson said in a statement. “The President will continue implementing the policy agenda that the American people voted for in November lawfully, and the winning will continue!”
The Justice Department, which litigates cases in court, did not respond to requests seeking comment.
The department’s top Supreme Court lawyer is Solicitor General D. John Sauer, who served as a law clerk under the late conservative Justice Antonin Scalia. Sauer, who was one of Trump’s personal lawyers before taking office, successfully argued last year at the Supreme Court that the former president had broad immunity with respect to his role in seeking to challenge the 2020 election results.
Sauer has successfully asked the Supreme Court to allow it to undertake some of its biggest policy priorities, including downsizing federal agencies, removing protections for thousands of immigrants living in the U.S. and barring transgender people from the military.
The two losses were both in high-profile immigration cases. In one, the court put on hold plans to immediately deport immigrants using a wartime law called the Alien Enemies Act. In the other, the court ruled the court should seek the return to the United States of Kilmar Abrego Garcia, who was wrongly deported to El Salvador.
But the Justice Department has not turned to the Supreme Court on some of its most contentious moves that were blocked by federal judges, including executive orders that targeted certain law firms and the government’s detention of foreign students who protested against Israel over its military intervention in Gaza.
“There are some cases that are very likely to be losers they haven’t brought,” said Jonathan Adler, a professor at William & Mary Law School. “That suggests to me it has been very strategic.”
Other big cases are on the horizon, including a consequential showdown on Trump’s ability to unilaterally impose tariffs on imported goods.
“They’ve had a very good few months. But the real ballgame still lies ahead,” said Michael Toner, a litigator and former chairman of the Federal Election Commission, referring to the tariffs case and another showdown over Trump’s attempt to fire without cause a Democratic member of the Federal Trade Commission.
Elizabeth Wydra, president of the left-leaning Constitutional Accountability Center, said part of the administration’s success so far has been the rate at which it has brought issues to the court that mirror arguments that have long been favored by the conservative legal movement. That includes empowering the presidency and weakening the power of independent federal agencies.
“Their winning streak shows that the court is not particularly interested in this moment in acting as a constitutional check on the executive [branch]. We have seen the lower courts step into that role,” she added.
The administration’s more respectful tone toward the Supreme Court is at odds with the fractious relationship officials have had with lower-court judges who have frequently ruled against various White House policies.
Some judges previously told NBC News that the Supreme Court’s decisions in favor of the administration have served to at least give the appearance of validating harsh criticism of the judiciary made by Trump and his allies. Judges have also accused the administration of defying court orders.
The differing, and more conciliatory tone, the administration had adopted before the Supreme Court was on display in May when the justices heard oral arguments over whether to curb lower-court rulings that blocked Trump’s plan to end birthright citizenship.
Sauer, pressed on whether the administration might defy certain court rulings, said that it was not always obligated to follow lower-court precedents but would always follow what the Supreme Court says.
“So you’re not hedging at all with respect to the precedent of this court?” asked Justice Amy Coney Barrett, who ultimately wrote the court’s ruling in favor of the administration.
“That is correct,” Sauer said.
