Circuit Justice Kagan Never Bothered Calling For A Reply In Trump v. AFGE

The Circuit Justices do not apply uniform rules when it comes to emergency applications. Justice Jackson, for example, refused to promptly call for a response in Libby v. Fectau, a case where the majority ultimately granted emergency docket relief.

I have also been keeping my eye on Trump v. AFGE. On May 9, A federal district court issued a TRO against the Trump Administration to block the removal of certain employees. On May 16, the Solicitor General applied for an emergency stay with Circuit Justice Kagan. And Kagan did absolutely nothing. She didn’t even call for a reply.

On May 22, the District Court entered a preliminary injunction, which the government promptly appealed. On May 23, the Solicitor General filed a letter with the Supreme Court, withdrawing the stay application. The short letter states:

On May 16, 2025, we filed in the above-captioned case an application for a stay of an order issued on May 9, 2025, by the United States District Court for the Northern District of California. Labeled as a temporary restraining order, that order barred numerous executive-branch agencies from taking various actions related to an executive order and guidance memorandum concerning federal agencies’ reductions in force. The order also directed the disclosure of certain deliberative executive-branch planning documents. Yesterday, May 22, the district court issued a preliminary injunction succeeding its temporary restraining order. Today, the United States filed a motion in the United States Court of Appeals for the Ninth Circuit to stay that new order pending appeal. In light of those developments, the United States withdraws its May 16 stay application in this Court.

I think I figured out what happened here. Justice Kagan realized that the District Court would almost certainly replace the unappealable TRO with an appealable PI. So she didn’t lift a finger. She would rather wait for the normal appellate process to play out in the Ninth Circuit. Apparently, Justice Kagan did not think much of the government’s urgent desire for a ruling.

As a practical matter, Kagan’s delay extends by at least a month how long the government would be subject to an injunction. There isn’t even the chance for an administrative stay. This case illustrates how much power and discretion the Circuit Justice has.

One of my proposals for bilateral judicial reform is to rotate the circuit justices annually. How is it fair that Justice Kagan always has authority over the Ninth Circuit while Justice Alito always has authority over the Fifth Circuit? Neither Justice has any geographic ties to the area. These should shift every year. And while I’m on the topic, the Court should consider a standard timeline for responses with emergency applications. It seems unfair that individual Circuit Justices can game the system.

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