Taking Down Trump 2.0 - The Long Game

Rule 6, continued. How will the court challenges against the administration unfold, and why should we still bring them even when some of they may ultimately not succeed?

Today we continue looking at Rule 6 of the new playbook for fighting Trump, with the road ahead for the court challenges against the administration. If you haven’t already read Part 1 of this Rule, check it out now.

3 - Discovery, motions for summary judgment, and a trial?

After the initial fireworks on stays, TROs, and injunctions, the case settles down into more of a grinding war of attrition to force everyone to cough up evidence, and this is one of the parts that really eats up a lot of time. Every party can request documents from every other party, pose questions (called interrogatories) to any other party, and force individuals to sit for depositions to provide testimony under oath (much like a cross-examination, with a court reporter and a videographer, except in a conference room at a law firm rather than in a courtroom). This is called discovery — a quite innocuous word for a quite devilish and depleting ordeal. It is expensive, laborious, and it takes forever.

There can then be a separate process for expert discovery, where parties will present expert witnesses prepared to opine on issues in the case, those experts issue lengthy reports, and those experts also get deposed. In one of these court challenges to the administration, experts will likely get called regarding the policies at issue. Is there a bona fide policy rationale for the government’s action? Or is it arbitrary and political or ideological?

After all of this, any party can then move for summary judgment, arguing that the evidence so heavily favors them that there is no way the other side could win at trial. The judge can grant or deny summary judgment, in whole or in part. And if there are any issues or parties left, they go to trial (usually before the judge rather than a jury).

4 - Appeals and SCOTUS

After a final decision by the district court, parties may then appeal — and often there will be multiple appeals and cross-appeals, as even the “winners” at the district court probably did not win everything they were seeking. This part of the process can be even lengthier than discovery, but mostly because of all the waiting involved. There can be months and months of waiting, a deadline for filing briefs, then months and months before an oral argument, then a lot more months of waiting for a decision, etc.

At this point the case goes up to the Circuit Court for the district where the case was filed — the Ninth Circuit for the west coast, the First Circuit for much of New England, etc. And because of the volume of administrative and constitutional law cases involving the federal government, there has long been a dedicated D.C. Circuit — and that is where the plurality if not the majority of these vital cases will end up.

Then there is an important distinction. Circuit Courts are required to hear appeals. If a party appeals, the Circuit Court must take the case and decide it.

Fun fact: the inscription on the top of the Supreme Court building says EQUAL JUSTICE UNDER LAW. Who knew government sculptors had such a dry, cutting sense of humor?

This is not true for the US Supreme Court. There, a party files a “writ of certiorari,” and SCOTUS has discretion on whether to take the case or not (when they do, we often calling it “granting cert,” or when not, “denying cert”).

So there will be some of these cases where SCOTUS decides not to hear the case — for example, if enough of the justices think that the law in the area is so obvious or settled that it does not require further review. But there will be many others where the Supreme Court will grant cert and hear the case, even if they ultimately affirm the Circuit Court.

What can we expect, then? If the first Trump term is any indication, the vast majority of these challenges will succeed at least initially: one review found that out of 58 challenges brought in the first term, 53 of them resulted in the Trump administration losing. These cases were decided by a broad array of both conservative as well as liberal judges — a testament to the administration’s blatant overreach and disregard for the law.

We should thus not be surprised if many of the new cases result in victories at the district court and circuit court levels.

The question, of course, will be SCOTUS, with its 6-3 conservative majority and multiple far-right justices with gross corruption allegations and dubious loyalty to the Constitution.

There will be some cases where the Supreme Court overturns all the hard-won successes in the courts below and allows a heinous and illegal and/or unconstitutional administration action to go forward — but there will be others where the Supreme Court affirms the lower court.

And in any event, these cases will take years to unfold.

This is why the early injunctions are so critical — because they can preserve the status quo while the case is pending. During those years when the case winds through the courts, the harms and injuries are halted, at least for now. And if we can hold the line for the next few years, the backlash from the administration’s hubris and incompetence can result in victories in 2026 and 2028 to restore the Republic and the rule of law and to undo the corruption and cruelty that is being perpetrated on the American people.

That is playing the long game. And it is our absolute imperative right now.