The Supreme Court’s 80% Emergency Win Rate Reflects Case Selection

The Trump administration lost about 75% of certain interim cases in lower courts, while winning somewhere between 70% and 80% of the cases it brought to the Supreme Court. Those estimates, Michael McConnell cautioned, depend on how the cases are defined. He argued that the gap does not by itself show that the Supreme Court is in the president’s pocket. It reflects which cases are filed where, which losses are appealed, and what the Court is being asked to decide.

These figures concern emergency or “shadow docket” cases, not final rulings after a full trial and appeal. A lower court may issue a temporary restraining order, stay, or preliminary injunction that blocks an administration action while litigation proceeds. The immediate question is whether the president can enforce the challenged policy during that interval. Such disputes can reach the Supreme Court quickly, without a complete record or full argument.

The cases that reach the justices are not a random sample of lower-court losses. McConnell said roughly 200 interim orders had come from lower courts, but the solicitor general had taken about 20 to the Supreme Court. Most district-court rulings were not appealed on this emergency basis. Solicitor General John Sauer, McConnell said, chose cases in which the administration had a reasonably strong legal argument. The administration was, in effect, selecting its appeals.

That changes what the Supreme Court win rate can tell us. It describes the administration’s outcomes in a small group selected for appeal, not its record across all emergency disputes. McConnell compared the current estimate of roughly 80% with a 68% win rate during both the Biden administration and the first Trump administration. The current administration has won more often, he said, but the difference is less startling when the volume of cases and the selection process are considered.

There is another qualification. On emergency applications, the Supreme Court has tended, under both Republican and Democratic presidents, to give weight to the administration’s account. The cases arrive without the full record and argument that would ordinarily inform a final decision. McConnell said that tendency gives the government “a bit of a leg up.” An emergency ruling is therefore shaped both by the limited material before the Court and by the procedural question of what should happen while litigation continues.

Lower-court outcomes have their own selection effects. Litigants can choose where to bring a challenge, and federal districts differ in the political backgrounds of their judges. McConnell pointed to the Northern District of California, where he said there were no Republican-appointed district judges, and to districts with heavily Republican benches. Lawyers challenging a Biden administration policy might file in the Northern District of Texas; groups challenging a Trump policy might choose San Francisco, Seattle, or Boston.

Judges do not simply rule according to the party of the president who appointed them, McConnell stressed. But the choice of court can create what he called a “home court advantage.” He estimated a difference in win rates of roughly 80% versus 68% associated with that choice. Combined with the unusually large volume of challenges, this helps explain why the administration has lost so many cases at the district-court stage.

McConnell also described Trump as an unusually aggressive president: one who acts rapidly, sometimes without enough thought, and pushes the boundaries of executive power. He presented this as a description of Trump’s governing style, not an accusation. An administration that takes many actions “on the line or maybe over the line” can expect more litigation. When plaintiffs can also choose where to sue, a high rate of lower-court losses is less surprising.

McConnell’s account of the Supreme Court’s approach turns on a distinction between the president’s authority over the executive branch and the executive branch’s authority over the country. He characterized the Court as generally upholding presidential control within the government, including by ending what he called the notion of independent regulatory agencies. In his view, this is an inward-facing question: how much authority does the president have to direct the executive branch?

Outward-facing cases ask how much power the executive branch can exercise in relation to the public, particularly when Congress has not explicitly authorized the action. McConnell cited disputes involving birthright citizenship, tariffs, and the use of the National Guard in American cities. In these cases, he said, the Court has tended to limit the executive branch’s power.

He described these positions as part of a long-standing approach to executive authority that predates Trump and has been consistent across administrations. The distinction is not simply between outcomes the president likes and outcomes he does not. It is between presidential control of the executive branch and claims of executive power over people and institutions outside it. McConnell presented the Court’s tendency to uphold the former and resist the latter as a defensible account of the presidency.

Lower courts, McConnell said, have issued broad—and sometimes overbroad—orders against the Trump administration in numbers he described as far higher than in any earlier period of American history. The Supreme Court, by contrast, has often tried to avoid a direct clash with the executive. That can mean delaying action until a case reaches a full decision on the merits, or choosing narrower ways to resolve a dispute. Avoiding confrontation, in this account, does not necessarily mean agreeing with or upholding the administration.

The caution has an institutional basis. Drawing on Alexander Hamilton’s discussion in Federalist 70, McConnell noted that the judiciary has neither the purse nor the sword and depends on the executive to enforce its decisions. He recalled that Thomas Jefferson was prepared to defy the Supreme Court. Franklin Roosevelt, he said, drafted a radio address in anticipation of a major Supreme Court loss, but won the case and did not deliver it.

At the beginning of Trump’s second administration, McConnell said, there were serious questions about whether Trump might likewise refuse to comply with a court order. The remedy for defiance was unclear. Impeachment was a possibility, but McConnell questioned whether it was politically realistic. Courts therefore operate under the possibility that an order could become ineffective. He considered Chief Justice John Roberts and the other justices skillful in selecting cases that matter without needlessly provoking the president.

The dispute over a mistaken deportation illustrates how that caution can shape an order. McConnell identified the man as Obregon Garcia, whom he believed to be Guatemalan. When the administration said it would not bring him back, the Supreme Court ordered it to “facilitate his return.” That was less direct than a district court’s demand that the administration return him within 24 hours. McConnell said the Supreme Court’s wording effectively required his return, which eventually happened, though it took a few months.

The wording and timing mattered to McConnell’s point: the Court could make an order consequential without adopting the more direct demand or deadline issued by the district court. In his account, choosing a less confrontational form can be a way to secure compliance, not evidence that the Court has accepted the administration’s position.

McConnell’s final theme was that many of the administration’s Supreme Court wins, especially on the emergency docket, were temporary. The Court may refuse to let a lower court block an action while litigation continues without deciding that the action is lawful on the merits.

That distinction leaves room for meaningful short-term consequences. Allowing a policy to proceed during litigation affects what happens while the case is pending. But it is not the same as interpreting the law to permit the policy permanently. An emergency win should not automatically be read as a final endorsement of the administration’s action.

McConnell argued that the Court’s record has not quieted attacks on its legitimacy. He pointed to California senator Adam Schiff’s renewed call to add four justices, which, as McConnell described it, was tied to disagreement with the Court’s decisions. He also cited House Democratic leader Hakeem Jeffries, who had called for “drastic Supreme Court reform” and described the Court’s conservative majority as out of control.

For McConnell, proposals to expand the Court raise a tension: people who say the constitutional order is in crisis may also be willing to weaken the independence of one of its central institutions. He said the country is in crisis and that Trump is part of that crisis, while arguing that an independent judiciary remains essential to the constitutional system.

He urged listeners to question whether the Supreme Court is simply serving the president. As support, he invoked Justice Elena Kagan, whom he described as a leading liberal appointee and former dean of Harvard Law School. McConnell said Kagan had called the charge that the Court was too deferential to Trump a “bad rap” and rejected the claim that the justices were puppets of the administration.