The Supreme Court keeps backing Trump. Justice Kavanaugh explains why

President Trump has been on a winning streak at the Supreme Court, though the reason is often unclear.

He has prevailed in the majority of the court’s emergency docket rulings on challenges to his executive actions.

As is their practice, the justices have usually issued only a terse paragraph or two lifting lower court blocks on Trump initiatives. Their lack of explanation leaves the public and lower court judges, in particular, to wonder about the legal reasoning.

Enter Justice Brett M. Kavanaugh, who has emerged as a kind of court interpreter.

In early September, the high court set aside a district judge’s ruling that immigration agents were acting unconstitutionally in some of their arrests in Los Angeles. Justice Sonia Sotomayor accused her colleagues of creating “a country where the government can seize anyone who looks Latino, speaks Spanish and appears to work a low-wage job.”

Of the six Republican-appointed justices, only Justice Kavanaugh wrote an opinion. He said U.S. District Judge Maame Frimpong likely erred in her ruling for several reasons and that ethnicity, language and jobs can be factors in an immigration arrest.

“Under this court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States,” he wrote.

In August, the high court allowed Mississippi’s restrictions on youth access to social media to remain in effect. Justice Kavanaugh wrote to clarify that the law would eventually be declared unconstitutional.

In a July case regarding Mr. Trump’s firing powers, Justice Kavanaugh said there was a “fair prospect” that the court would overrule precedent, so letting him go ahead with the firings while the cases proceeded made sense.

Otherwise, “we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question,” the justice said.

That concern has become an issue amid the wave of Trump-related cases speeding their way to the justices, raising questions about the presidency and constitutional powers.

Mr. Trump is doing remarkably well. The justices have sided with his position in more than 90% of the emergency docket rulings.

On Friday, the justices allowed Mr. Trump to block $4 billion in foreign aid spending, effectively killing money that Congress had approved. The court’s majority made clear in an unsigned order that they were not ruling on the merits of the case, but the effect was a victory for the president.

Justice Elena Kagan castigated her colleagues. She said the case was “uncharted territory,” so the justices shouldn’t have made such a momentous ruling on the emergency docket.

“The standard for granting emergency relief is supposed to be stringent. The Executive has not come close to meeting it here,” wrote Justice Kagan, an Obama appointee.

Legal experts say part of Mr. Trump’s winning streak stems from a judicious selection of cases to rush to the justices.

Emergency rulings

The growing impact of the emergency docket is gaining attention. Last year, the justices decided 44 issues on the emergency posture. As of early August, they had decided 113, according to SCOTUSblog.

The cases reach the justices on an interim posture, usually after a lower court judge has issued a preliminary injunction blocking the president’s action. They do not have full briefings or oral arguments, and the court usually dispenses with them in brief orders.

Lower court judges have been flummoxed without full opinions from the high court.

“Judges in the trenches need and deserve well-reasoned, bright-line guidance,” one judge told NBC News. “Too often today, sweeping rulings arrive with breathtaking speed but minimal explanation, stripped of the rigor that full briefing and argument provide.”

NBC said that 10 of the 12 judges with whom it spoke said the lack of explanation in interim docket rulings is a problem.

The firings are a classic case.

A 1935 Supreme Court precedent seems to protect members of boards of independent agencies from being fired without good cause, but Mr. Trump has done that repeatedly. Lower court judges rushed to issue injunctions to reinstate the fired officials.

In May, however, the Supreme Court allowed the president to carry out firings at the National Labor Relations Board, the Consumer Product Safety Commission and the Merit Systems Protection Board.

A host of other cases were developing, and confusion reigned. Most judges said the 1935 precedent was still relevant, but some said the justices’ interim decision had upended it.

Two more Supreme Court decisions on firings made clear that the justices wanted lower courts to give the president leeway.

The same issue is playing out with immigration. The justices have mostly given the president leeway in deportations, only to be met with resistance in lower courts.

U.S. District Judge Tanya Chutkan, a frequent legal adversary of the president, declined to apply the high court’s ruling on speedy removals to another case. She said the justices didn’t provide enough explanation, and she didn’t know whether the case before her fell under the same framework.

“This court cannot make that leap,” Judge Chutkan wrote.

‘Shadow’ vs. ‘interim’ docket

The justices are aware of the debate over their emergency rulings and the slim explanations they offer.

Justice Kagan said in remarks to a judicial conference in July that the court’s rulings needed better explanation.

“As we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn’t recognize when we first started down this road to explain things better,” she said. “I think that we should hold ourselves sort of on both sides to a standard of explaining why we’re doing what we’re doing.”

Speaking at a different judicial conference days later, Justice Kavanaugh pointed out that the cases on the emergency docket are preliminary.

“So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that’s not going to reflect the final view,” said Justice Kavanaugh, a Trump appointee.

Justice Kagan and the court’s other Democratic appointees have been harsh on their colleagues for heavy lifting on the emergency docket.

Justice Kavanaugh said at a conference in September that they don’t have a choice.

“We would be happy if we didn’t receive those applications, but once we receive them, we have to deal with them,” he said.

Still, he acknowledged his experience navigating high court rulings while on the Court of Appeals for the District of Columbia Circuit.

“So I’m thinking about district judges, circuit judges and magistrate judges,” he said.

Adam Feldman, Supreme Court scholar and creator of Empirical SCOTUS, said “short, reasoned statements” can help lower courts decide how much weight to place, and where to place it, from emergency docket rulings without locking the high court into a final position on the merits.

“Justice Kavanaugh’s separate writings often function as that bridge — explaining why a stay issues and how to read it — which, in a term heavy on emergency work, has been stabilizing,” he said.

The emergency docket is so controversial that the very name has become an issue.

Justice Kavanaugh has said he favors the “interim” docket. In 2015, a legal scholar dubbed it the “shadow docket,” highlighting behind-the-scenes work.

Justice Kagan has used the term “shadow” docket but cautioned against it this summer, preferring the “emergency” docket.

“‘Shadow docket’ really does suggest this is just a terrible thing, generally, and it is not that. Sometimes we have to act on the ‘shadow docket.’ There are no absolute rules. There are emergencies, and we have to do something,” she said.

Elliot Mincberg, senior fellow at People For the American Way, who uses “shadow docket,” said the best option for the justices is to limit its use.

“The shadow docket should not be being used as often as it is to upset what the lower courts have done,” Mr. Mincberg said. It is a “very disruptive thing to do without an explanation, without full briefing and argument.

“In general, I think that the increase in the use of the shadow docket to make what turned out to be quite significant changes to what lower courts have done is not a good thing, and the answer to that would simply be not to take as many cases on the shadow docket,” he said.

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said it is understandable, given the posture of the case rushed to the justices, that the court doesn’t issue much in writing so as not to have a final say on its merits.

“These are fast-moving cases involving interim relief, so historically, the court doesn’t write much, if anything, during these circumstances,” Mr. Shapiro said.