Bonus 50: On the Biden Administration's 13 Emergency Applications

The Biden administration is quietly running up a (remarkably) positive record in requests for emergency relief. Its success bespeaks larger problems with which the justices will soon need to grapple.

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One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. This week, I wanted to reflect on the broader implications of the Court’s two grants of emergency relief last week—both of which came on requests from the Biden administration. With those two grants, the Biden administration is now 8 for 13 in requests for emergency relief across its first 33 months in office. And in three of the five cases in which it “lost,” it actually won the underlying dispute on the merits. That’s a pretty impressive success rate relative to what we might have expected from a Democratic administration going before the current Court.

But beyond what it says about certain lower courts (and the federal government’s top lawyers), it also drives home a broader point about emergency relief and the justices: The recent surge in requests (and, other than last term, grants) is not likely to be an evanescent phenomenon, and so it may well be time for the justices to consider a more holistic approach (and clearer norms and rules) to govern these cases.

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