The Trump administration’s emergency appeal to the Supreme Court to block a lower court order that the Department of Government Efficiency hand over records in a lawsuit over whether it is exempt from the Freedom of Information Act underscores the government’s reliance on this shortcut to the high court.

The Department of Justice requests that the Nine block the deposition of a DOGE official, Amy Gleason, as well as pause any disclosure of records. Solicitor General Sauer, in a Wednesday filing, contended that DOGE is an advisory body to the president and not a federal agency, and therefore out of FOIA’s ambit. DOGE is led by the world’s richest man, Elon Musk. 

Judge Christopher Cooper of the United States District Court for the District of Columbia ruled in March that many of DOGE’s “staffers are reported to have joined the federal government only recently and, to put it charitably, may not be steeped in its document retention policies.” He reasoned that those circumstances meant that immediate action was needed to ensure DOGE’s compliance with FOIA.  

Judge Cooper determined that DOGE possessed “substantial authority over vast swathes of the federal government,” power incommensurate with a mere advisory body. The suit demanding disclosure from DOGE was brought by Citizens for Responsibility and Ethics in Washington, which last year argued that Mr. Trump was ineligible for the presidency under Section Three of the 14th Amendment. 

The high court rejected that position by a unanimous vote. Now, Mr. Sauer writes that the lower court’s ruling against DOGE “clearly violates the separation of powers, subjecting a presidential advisory body to intrusive discovery.” The government argues that Judge Cooper’s ruling “would compromise the provision of candid, confidential advice to the president and disrupt the inner workings of the Executive Branch.”

The nature of DOGE is not the only issue that has come to the high court via its emergency docket. The Trump administration has made more than a dozen expedited requests, largely lightning efforts to thwart temporary restraining orders — some in the form of nationwide injunctions — dispensed by lower court judges. One such emergency appeal, heard last week, asked the justices to outlaw such injunctions altogether.

Earlier this month Mr. Sauer filed yet another emergency appeal asking the Supreme Court to give DOGE access to Social Security data after such access was denied by a lower court judge. Mr. Sauer wrote that the ruling impaired the executive branch’s “critically important efforts to improve its information-technology infrastructure and eliminate waste.”

The Supreme Court’s emergency docket is also known as its “shadow docket,” and it consists of cases where a party seeks immediate relief to prevent “irreparable harm.” They are handled on an expedited basis, with limited briefing and no oral arguments. Justice Amy Coney Barrett in 2021 worried that they are considered “on a short fuse without benefit of full briefing and oral argument.” 

Justice Ketanji Brown Jackson quoted that assessment in a dissent this week arguing that the court should deny yet another emergency appeal, this one not from the administration but from a Maine lawmaker, Laurel Libby, challenging her censoring in the Maine house. Granting such petitions, Justice Jackson determined, “is not a matter of right, but of discretion sparingly exercised.” 

Special Counsel Jack Smith, who prosecuted Mr. Trump for election interference and storage of classified documents at Mar-a-Lago, gambled that an emergency appeal to the Supreme Court on the issue of presidential immunity — he contended there was none — could put his case on a fast track to trial.

Mr. Smith pushed for a hearing even though he won at the district court level and had already secured an expedited schedule from the District of Columbia Circuit of the United States Court of Appeals. While the special counsel did not explicitly cite the possibility of Mr. Trump winning the election, he claimed a “compelling” public interest in resolving the question.

The justices rejected Mr. Smith’s emergency appeal but later decided to hear the case in the normal course after the appellate court ruled in Mr. Smith’s favor. In Trump v United States, a 6-to-3 court found that official presidential acts are entitled to the presumption of immunity. 

The term “shadow docket” was first coined by a legal scholar, William Baude, in 2015. At least one justice, Samuel Alito, objects to it, calling it “sinister” and “used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”