EMERGENCY DOCKET
on Feb 21, 2025
at 6:54 pm
The court issued its ruling in Bessent v. Dellinger on Friday evening. (Katie Barlow)
The Supreme Court decided on Friday to maintain an order from a federal judge in Washington, D.C., requiring President Donald Trump to temporarily restore the head of an independent federal agency dedicated to protecting whistleblowers from retaliation. The justices did not respond to the Trump administration’s request to block U.S. District Judge Amy Berman Jackson’s order, which had reinstated Hampton Dellinger as the head of the Office of Special Counsel for a period of 14 days starting February 12. Instead, the justices noted in a brief order that they would hold the government’s request in abeyance until Jackson’s order expires on February 26.
Justice Neil Gorsuch, joined by Justice Samuel Alito, dissented regarding the court’s decision to refrain from acting on the Trump administration’s request.
Meanwhile, Justices Sonia Sotomayor and Ketanji Brown Jackson indicated, without elaboration, their intent to deny the government’s request.
This order marked the first instance where the Supreme Court has responded to a request from the Trump administration to intervene in one of the many lawsuits challenging actions taken by Trump and his administration since his inauguration on January 20.
The Office of Special Counsel was established following the Watergate scandal to protect federal employees from illegal activities in the workforce, such as discrimination, improper hiring practices, and particularly retaliation. According to the federal law governing the agency, the president may remove the office’s head, who serves a five-year term, only for “inefficiency, neglect of duty, or malfeasance in office.”
Dellinger was appointed as head of the Office of Special Counsel by then-President Joe Biden in 2024. He was dismissed via an email on February 7 without any stated reason.
Dellinger subsequently challenged his dismissal in federal court. On February 12, Judge Jackson issued a temporary restraining order reinstating Dellinger for 14 days.
A federal appellate court in Washington, D.C., declined to intervene, ruling on February 15 that it lacked jurisdiction to review the Trump administration’s appeal because temporary restraining orders typically cannot be appealed, unlike preliminary injunctions which offer relief while litigation is ongoing unless overturned.
On Sunday night, Acting U.S. Solicitor General Sarah Harris formally requested the Supreme Court to intervene. She contended that, as a general principle, the president has the authority to remove senior officials whenever he sees fit. This argument was supported, she asserted, by previous Supreme Court rulings suggesting that limitations on the president’s ability to dismiss heads of agencies like the Consumer Financial Protection Bureau and the Federal Housing Finance Agency were unconstitutional.
Harris further argued that Judge Jackson’s temporary restraining order did not alter the overall situation. A restraining order of this nature, she claimed, should be reviewed immediately as it “deeply intrudes into the core concerns of the executive branch.”
Harris noted that since the inauguration in January, various district courts have issued temporary restraining orders inhibiting the president’s initiatives. Without the ability to appeal these orders, she cautioned, “district courts may be encouraged to issue more aggressive TROs.” Furthermore, she remarked that under Dellinger’s interpretation, a historic injunction against the bombing of Cambodia during the Vietnam War would have been unappeasable if it had merely been issued as a temporary restraining order for 28 days.
Dellinger urged the justices to uphold Judge Jackson’s ruling, warning that entertaining the government’s appeal could result in an influx of appeals concerning temporary restraining orders, establishing a “rocket docket straight to this Court even as high-stakes emergency litigation” continues to proliferate nationwide. He emphasized that Jackson’s order merely maintains the status quo while “extremely expedited proceedings” are set in motion to settle the dispute. Jackson could eventually rule on the case “in ways that would negate the necessity for this Court’s involvement (or, at least, create a suitable record for it).”
In a concise ruling, the court acknowledged both the Trump administration’s concession that the Supreme Court “typically does not possess appellate jurisdiction over” temporary restraining orders and Dellinger’s assertion that the order “is scheduled to end on February 26,” the same day Jackson has set for a hearing on Dellinger’s request for a preliminary injunction. Considering both aspects, the court decided to postpone the government’s request until February 26.
In a three-page opinion, Gorsuch (joined by Alito) indicated that the court’s hesitance in addressing the government’s request at this stage reflected “a concern that the TRO may not yet have matured into an appealable order.” However, Gorsuch posited that it indeed had. He questioned whether Jackson had the authority to impose Dellinger’s reinstatement since such judicial power was nonexistent in early U.S. history.
This article was initially published by Howe on the Court.
