The Supreme Court on Friday afternoon handed a pair of victories to the Trump administration on the so-called emergency docket. Over the objections of the court’s three Democratic appointees, the justices cleared the way for members of the so-called Department of Government Efficiency to access the records of the Social Security Administration. And the court temporarily paused an order by a federal judge in Washington, D.C., that would have required DOGE to provide information in a lawsuit filed under the Freedom of Information Act. Instead, the justices sent the dispute back to a federal appeals court with instructions for those judges to take another, more skeptical look at the order.
On the first day of his second term, President Donald Trump signed an executive order creating DOGE, which is not a cabinet-level department, to modernize government technology and cut waste and fraud. The lawsuit that led to Friday’s order in the Social Security case began in February, when two labor unions and a grassroots advocacy group went to federal court in Baltimore to challenge the SSA’s decision to give DOGE access to its records. The plaintiffs contended that in doing so, the SSA had “abandoned its commitment to maintaining the privacy of personal data” for millions of Americans.
On March 20, Senior U.S. District Judge Ellen Lipton Hollander issued an order that temporarily blocked the SSA from allowing DOGE team members to have access to the agency’s records. On April 17, Hollander extended that bar while litigation continued in the lower courts.
When a divided U.S. Court of Appeals for the 4th Circuit rejected the Trump administration’s request to pause Hollander’s order, U.S. Solicitor General D. John Sauer came to the Supreme Court, asking the justices to step in. Sauer told the justices that Hollander’s order “does not merely halt the Executive Branch’s critically important efforts to improve its information-technology infrastructure and waste,” but “also constitutes inappropriate superintendence of a coequal branch.”
The plaintiffs urged the justices to stay out of the dispute. They stressed that Hollander’s order is limited in duration as well as in scope, because it merely prohibits DOGE team members from accessing SSA records if they have not yet undergone training and background checks. But, according to the plaintiffs, their members will be permanently harmed if Hollander’s order is lifted and their records are disclosed. The data stored by the SSA “is among the most sensitive in government records,” they wrote. And there is little that can be done to compensate them if their records are disclosed, they said, because “the core harm stems from the invasion of privacy itself.”
In an unsigned three-paragraph order, the Supreme Court granted the government’s request. The opinion noted that when deciding whether to put a lower court’s decision on hold, the court considers four criteria: whether the party seeking the stay is likely to prevail on the merits; whether it will be permanently harmed if the decision is not paused; whether the stay will “substantially injure” other parties to the dispute; and the public interest. When all of these factors are applied to this case, the court wrote, they lead to the conclusion that Hollander’s decision should be temporarily blocked while the government’s appeals continue – through the Supreme Court if necessary. “SSA may proceed to afford members of the SSA DOGE Team access to the agency records in question in order for those members to do their work.”
Justice Elena Kagan indicated, without more, that she would have denied the government’s request.
Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. She complained that the Trump administration “wants to give DOGE unfettered access to this personal, non-anonymized information right now—before the courts have time to assess whether DOGE’s access is lawful.” But the Trump administration had not shown that either it or the public will be harmed if the court does not step in, Jackson suggested. “In essence,” she wrote, “the ‘urgency’ underlying the Government’s stay application is the mere fact that it cannot be bothered to wait for the litigation process to play out before proceeding as it wishes” – a consideration that “has traditionally been insufficient to justify the kind of extraordinary intervention the Government seeks.”
DOGE was created by President Donald Trump on Jan. 20 to advance Trump’s agenda by “modernizing Federal technology and software to maximize governmental efficiency and productivity.” Although it is not a cabinet-level department, DOGE has been widely involved in Trump’s efforts to reduce the size of the federal government.
The second order came in a dispute that arose after a government watchdog group, Citizens for Responsibility and Ethics in Washington, filed a request under FOIA for (among other things) communications between the DOGE administrator, Amy Gleason, and DOGE staff, as well as financial disclosures submitted by DOGE personnel.
CREW went to federal court in Washington on Feb. 20. In its FOIA lawsuit, it asked DOGE to hand over documents that it said it wanted before Congress passed a bill to fund the federal government.
CREW also sought to fast-track discovery – the process of exchanging information in litigation – to determine whether DOGE is a federal “agency” that must comply with FOIA. It asked for a list of current and former DOGE employees, a list of employees and positions for which DOGE had recommended termination, a list of government contracts and grants that DOGE had recommended be canceled, and the opportunity to depose Gleason.
U.S. District Judge Christopher Cooper granted most of CREW’s discovery requests, including its request to depose Gleason, and the U.S. Court of Appeals for the District of Columbia Circuit rejected DOGE’s plea to put Cooper’s order on hold.
U.S. Solicitor General D. John Sauer then came to the Supreme Court on May 21, asking the justices to intervene. He told the justices that the discovery required under Cooper’s order was “expedited” and “intrusive” and “offends the separation of powers by compromising the ‘necessity’ for confidentiality that allows presidential advisors to provide ‘candid, objective’ advice and communication.”
CREW urged the justices to leave Cooper’s order in place. It countered that the order is “narrowly-tailored” and that the determination whether an entity is an “agency” for FOIA purposes is a fact-specific one “for which courts have ‘previously endorsed limited discovery.’”
In a two-page unsigned order on Friday, the justices sent the dispute back to the D.C. Circuit for another look. According to the court, the portions of Cooper’s discovery order that requires the government to disclose the content of DOGE’s recommendations within the executive branch, as well as whether those recommendations were followed, are too broad. Moreover, the court added, concerns about the separation of powers between the branches of government “counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.”
Meanwhile, the court put Cooper’s discovery orders on hold while the D.C. Circuit conducts its review and, if necessary, the government appeals to the Supreme Court.
Sotomayor, Kagan, and Jackson all indicated – without any explanation – that they would have denied the government’s request.
Posted in Emergency appeals and applications, Featured
