Brian Reed: Hey. You see this thing from The Hill this morning?
Eliza Ward: The tracker. Yeah. Forty-two.
Brian Reed: Forty-two emergency applications. Second term only. And — wait, so that's already past the first term's full four years? That's — I had to re-read that.
Eliza Ward: First term was forty-one. Over four years. This term: forty-two, and we're not even — I mean, what is it, October 2026? Not even two years in.
Brian Reed: And the one that crossed the line was D. John Sauer filing against the Fourth Circuit on FCC TV advertising rates.
Eliza Ward: Called it — wait, what was the phrase — 'a flagrant abuse' of mandamus power.
Brian Reed: TV ad rates. That's the one that breaks the record.
Eliza Ward: Right. Not a war powers dispute. TV ad rates.
Brian Reed: And that's the thing that breaks the analogy, right — because the emergency docket actually has a good reason to exist. It's like a courthouse side door. A contractor who labels every job a fire hazard to skip the permit line. The door is real. The fire hazard designation is real. Nothing stops you from using it for everything.
Eliza Ward: That's exactly the mechanism. The door was built for actual emergencies.
Brian Reed: So what's the actual scale here, historically? Because forty-two feels like a lot but I want to know if I'm calibrating that right.
Eliza Ward: Steve Vladeck's data. Bush and Obama — combined — eight times. Sixteen years. Eight. Biden got to nineteen in four years, which already felt like a jump. This term: twenty-two applications by October third of last year alone, which was already a record for any administration's first nine months. That's the order-of-magnitude shift. It's not incremental.
Brian Reed: Wait — twenty-two by October of twenty-twenty-five and now we're at forty-two in October twenty-twenty-six?
Eliza Ward: Yeah. And DOJ's answer to all of this is — look, this is how the system is designed to work. Which is technically true and also kind of beside the point.
Brian Reed: So — I mean, is that a real defense? Like, the permit line exists, therefore abusing it is fine?
Eliza Ward: Kate Shaw's answer to that is basically: no. Her argument is that 'irreparable harm' — that's the trigger for emergency relief — almost never is. Actually irreparable. The TV ad rate case, wait, that's the record-breaker, the one Sauer filed. That harm is... reversible on appeal. That's not a fire hazard. That's a contractor who wants to skip the line before midterms.
Brian Reed: And we don't have a ruling yet on that one — it's still pending. So we can't even say the strategy worked on the forty-second try. What we can say is they've won roughly three in four of the resolved ones. Which is — that number doesn't resolve the debate. It kind of sharpens it.
Eliza Ward: Three in four. But here's what that number actually means — actually, wait, let me back up — the take circulating right now is that forty-two is the scandal. The volume. And I want to push on that because I think that's wrong.
Brian Reed: Yeah, I think that's the thing I keep wanting to correct.
Eliza Ward: Because four of those forty-two were withdrawn. Two are still pending — the TV ad rate case, the transgender inmates case. So you've got thirty-six actually decided. And the administration won roughly seventy-five percent of those. That's the number. Not forty-two.
Brian Reed: Right, and — okay, so here's what I don't get settled in my head. Does seventy-five percent mean the Court is deferring, or does it mean the administration is just... filing the strong ones? Like, I mean, is Sauer picking his spots and we're calling that a problem?
Eliza Ward: That's the right question. And the answer is we genuinely cannot tell — because these orders are unsigned. No reasoning. No dissent published. SCOTUSblog's stat pack shows thirty-six substantive non-capital emergency applications resolved this term, and we don't know if five justices thought the legal argument was airtight or if they just liked the outcome. Those are different things.
Brian Reed: Binding law. No paper trail.
Eliza Ward: And look — the Court did say no sometimes. Kilmar Ábrego Garcia, wrongly deported to El Salvador, the administration wanted to block his return, Court declined. Lisa Cook, the Fed board member they wanted to fire, Court said no. So it's not rubber-stamping everything. But those losses haven't moved the seventy-five percent. The pattern holds.
Brian Reed: The exceptions prove — no, actually, the exceptions don't break the pattern at all. The pattern survives the exceptions. And the part that I think is structurally worse, the reason this compounds — we haven't even gotten to why the docket looks the way it does and what Alito's actually said about being unable to stop it. That part makes the seventy-five percent a lot harder to dismiss.
Eliza Ward: Yeah. Because a high win rate with written opinions — that's checkable. You can argue with it. A seventy-five percent win rate with no reasoning attached is a different kind of problem entirely.
Brian Reed: And Alito basically confirmed the mechanism, right — he said this out loud. Presidents lean on executive orders instead of legislation, courts block those orders fast, and then it lands at the Supreme Court on an emergency track. That's the structural explanation. Which is real. But it's also — I mean, understanding the gravity well doesn't mean you have to fall into it every time.
Eliza Ward: He said the Court cannot stem the tide. A sitting justice. That's not a critique from outside — that's the institution describing its own helplessness.
Brian Reed: And still participating in it.
Eliza Ward: Right. So — okay, think about what this looks like from inside the system. You're a federal employee, say you're in Baltimore, and you get fired by executive order. Not because of performance. Executive order. On a Monday. Your lawyer's realistic options are not 'file a merits case and wait for the appellate process.' The emergency docket is now just... your lane. That's not an exception anymore, that's the expected path.
Brian Reed: And the merits docket — the one that used to be the main road — it's down to 59 cases this term. From 160 in the eighties. That's not a detour, that's the highway closing.
Eliza Ward: Wait — and to be fair, that decline predates this surge. We can't say one caused the other. But the combined picture — 33% approval in Gallup, a merits docket at historic lows, emergency wins with no written reasoning — those aren't unrelated.
Brian Reed: Correlation, not proven cause. But the correlation is severe.
Eliza Ward: And the precedent problem is — actually, no, this is the part that I think outlasts this administration entirely. Any future administration, any party, has now watched forty-two applications with a seventy-five percent win rate. That's a validated playbook. You don't need to legislate. You executive-order, you absorb the injunction, you go emergency. The TV ad rate case and the transgender inmates case — the gender-affirming care one, which has been fully briefed since last Friday — those are still pending. Those are the two concrete things to watch right now. Not as endpoints. As proof of whether the playbook keeps working.
Brian Reed: And whoever wins in twenty-twenty-eight inherits that manual already written.
Eliza Ward: And neither the Court nor Congress has actually tried to price it differently. That's what I keep sitting with. Alito says the flood can't be stopped — but stopped by what mechanism? No one's built one. No constraint, no rule change, no signal that the emergency track costs anything.
Brian Reed: Right — and that's the question I can't get past. Not 'will the next administration use this?' That's settled. It's whether the Court can still actually function as a check on executive power when the fastest, least-scrutinized route is also the one it most consistently grants. I mean, that's — I don't have an answer to that. I'm not sure the evidence gives us one.
Eliza Ward: It doesn't. Genuinely doesn't.
Brian Reed: The two pending cases — the TV ad rate one, the transgender inmates one — those don't answer the structural question even if they resolve. A win or a loss on either one doesn't tell you whether the institution is still doing the job. It just tells you the score on those two.
Eliza Ward: 33% approval. Unsigned orders. No reasoning. And a justice on record saying the Court can't stop it — and still voting. That's where it sits. That's genuinely where it sits right now.
