A recent case concerning the National Guard may signal growing Supreme Court skepticism of President Trump’s appeals.
In October 2025, the Trump Administration filed an emergency application with the U.S. Supreme Court, asking the Court to overturn lower court orders limiting the President’s ability to send National Guard troops into the streets of Chicago and a nearby suburb. The troops, from Illinois and Texas, were sent to protect the U.S. Immigration and Customs Enforcement (ICE) agency in its efforts to round up and deport individuals from this country.
To support the need for immediate intervention, the Solicitor General, arguing for the Administration, made multiple claims to the Court in the introduction to his brief:
- The current situation entails “ongoing and intolerable risks to the lives and safety of federal personnel.”
- The lower court orders allow “prolonged, coordinated, violent resistance that threatens their lives and safety and systematically interferes with their ability to enforce federal law.”
- The President called up the Illinois National Guard because he was confronted with “intolerable risks of harm to federal agents and coordinated, violent opposition to the enforcement of federal law.”
- Supreme Court intervention was essential because “federal officers in Chicago have been threatened and assaulted, attacked in a harrowing pre-planned ambush involving many assailants, rammed in their government vehicles, shot at with fireworks and other improvised weapons, injured and hospitalized, and threatened in person and online—including by a $10,000 bounty for the murder of a senior federal official.”
Four days later, the Administration’s reply brief echoed its initial claim, arguing that each day the temporary restraining order “remains in effect imposes grievous and irreparable harm on the Executive.” The Court then ordered supplemental briefing, and the Solicitor General continued the same refrain, arguing that the President “acted well within his discretion” in finding that ICE agents were “unable to do their jobs without the support of the National Guard in light of the violent, organized resistance they are facing.”
That argument was followed in his reply letter brief with more of the same, arguing that the lower courts’ “message is clear: no form of immigration enforcement is acceptable in Illinois, and no form of violence against immigration agents is off-limits. DHS officers thus operate in a climate of constant fear for their lives and safety, which significantly impedes their enforcement of the law.”
On December 23, a majority of the Court, in a rare rebuke to a Trump Administration request for emergency relief, denied the stay application in a short unsigned order based on the Court’s view that the government was not likely to prevail on the merits. Justice Samuel Alito wrote a lengthy dissent, in which Justice Clarence Thomas joined, agreeing with the government on the legal issues and siding heavily with it on the need for intervention to protect ICE in its mission. Justice Neil Gorsuch also dissented, but he did so solely on the ground that the equities strongly favored granting the stay, adopting the portions of Justice Alito’s dissent that focused on the harms to ICE from denying emergency relief.
Additional district court hearings were scheduled at which the legal issues would be further developed, and the Trump administration was at liberty to seek to modify the preliminary injunction if the situation worsened.
Then, like a bolt out of the blue, the President said never mind. He announced on December 31 that he was withdrawing the National Guard troops in Chicago, as well as those he sent to Los Angeles and Portland, Oregon, where the governors also opposed their use. The National Guard will remain in Memphis, Tennessee and New Orleans, where the state governors supported their arrival. The troops will also remain in the District of Columbia, where the President does not need local agreement to use the guard.
In announcing the three withdrawals, the President claimed that the Guard had done what it was sent to do, but the timing of that declaration of victory seems suspect. Instead, the more likely explanation is that the legal handwriting was on the wall and that a strategic retreat was in order.
One question is whether the Trump Administration will be less aggressive in the future in seeking Supreme Court intervention when lower courts rule against the Administration, especially when they issue preliminary injunctions. Overall that seems unlikely, but there are two sets of challenges that the Administration lost after trial and took almost the full 60 days before appealing. Those are the cases in which law firms sued over President Trump’s orders that effectively sought to put them out of business representing clients before the federal government and Harvard sued seeking to set aside the revocation of almost all its grants and contracts with federal agencies. Perhaps those cases are unique because the equities so heavily favor the plaintiffs, but that could also be said of many other rulings that went against Trump.
The more important question is whether the Supreme Court majority will start to become skeptical of Trump Administration claims that the Earth will stop rotating if a stay of a lower court order is not granted.
Consider the recent executive order directing the government to revoke a decades-old policy that allowed transgender individuals to use their new and preferred gender on their passports. The obvious harm to the affected class—not to mention the potential confusion to officials at ports of entry and exit—was counterbalanced, according to the Solicitor General, because “the injunction dictates the contents of official U.S. communications with foreign sovereigns” and “deprives the government of control over its own speech” because “a U.S. passport is ‘government property.’” The previous policy, the Solicitor General added, “forces the government to misrepresent the sex of passport holders to foreign nations by using markers that reflect ‘the false claim that males can identify as and thus become women and vice versa.’”
The claimed harm to the Government in the National Guard case seems far more serious than in the passport case, yet the President withdrew the troops rather than continuing the litigation. The Administration’s retreat in the National Guard case should cause the Court to recognize that the lower courts are in a better position to evaluate these doomsday predictions. The Court should be more reluctant to step as it has routinely done until the National Guard’s case. Perhaps the Court will realize that the Trump Administration has cried wolf too often and, hopefully, will no longer grant stays whenever the government appeals an adverse ruling.
