We’re about to learn just how eager the Supreme Court is to help Trump

Hampton Dellinger, a federal official who President Donald Trump attempted to fire earlier this month, seems very likely to lose a lawsuit challenging that firing … eventually.

But the Trump administration is impatient to make that happen as soon as possible, asking the Supreme Court to intervene in the lower court battle currently underway over the firing. In making this request, the administration is effectively asking the justices to resolve a core question about constitutional separation of powers just weeks after Dellinger filed that lawsuit.

So the case, known as Bessent v. Dellinger, is worth watching not so much because there is much mystery about whether Trump could fire Dellinger — again, the Court is exceedingly likely to rule against Dellinger if forced to decide that question. Instead, the Dellinger case is worth watching as a sign of just how impatient a GOP-controlled Supreme Court is to expand a Republican president’s authority.

Last year, then-President Joe Biden appointed Dellinger as special counsel of the United States, a role that is primarily responsible for investigating unlawful personnel practices against the federal government’s own employees. By law, Dellinger serves a five-year term, and “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”

Nevertheless, a White House official wrote Dellinger on February 7, telling him that he was terminated from his role, effective immediately. Dellinger filed suit, and obtained a court order known as a temporary restraining order (TRO), which allows him to remain in office for now. Judge Amy Berman Jackson, who issued the order, also scheduled a hearing for February 26 to determine whether to issue a more lasting injunction leaving Dellinger in office.

Jackson’s TRO is now before the Supreme Court on its “shadow docket,” a mix of emergency motions and other matters which ask the justices to rule on a legal question unusually quickly. The specific dispute before the justices involves two conflicting principles.

On the one hand, the Court’s Republican majority is enraptured by a legal theory known as the “unitary executive,” which holds that the president generally must have the authority to fire any federal official — or, at least, any federal official who wields “significant authority pursuant to the laws of the United States.” The Court’s current precedents recognize some exceptions to this theory, but Republican judges frequently disparage those precedents. And, in any event, the Trump administration has a strong argument that those exceptions do not apply to this case.

On the other hand, TROs, which are quite temporary and typically expire within two weeks, ordinarily cannot be appealed to a higher court. The purpose of these temporary orders is to allow a judge to briefly hit pause on a case while they figure out how they should rule on it. Allowing the Trump administration to run off to the Supreme Court before Jackson holds the February 26 hearing would short circuit that process.

It would also require the justices to decide an important constitutional dispute on an extremely rushed schedule, increasing the likelihood that the Court will hand down an erroneous decision.

Ordinarily, the Court’s “unitary executive” precedents permit the president to fire the heads of federal agencies. As the Court said in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the president’s power “as a general matter” includes “the authority to remove those who assist him in carrying out his duties.” The Court reasoned that, “without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

That said, some of the Court’s precedents make exceptions to this general rule. Most notably, in Morrison v. Olson (1988), the Court upheld a now-defunct statute creating an “independent counsel” who could investigate and potentially prosecute high-ranking government officials — and who, like Dellinger, was protected against being fired by the president.

The independent counsel role upheld in Morrison is somewhat similar to Dellinger’s role as special counsel, as both positions were charged with investigating alleged legal violations by people within government. So there’s a good argument that, under Morrison, Dellinger cannot be fired except for cause.

But Morrison is reviled by Republican legal elites, including many of the Republican justices. Justice Brett Kavanaugh said in 2016, for example, that he wants to “put the final nail” in Morrison’s coffin.

Indeed, this Court has already taken significant steps to bury Morrison. In Trump v. United States (2024), the Republican justices’ infamous decision holding that Trump has broad immunity from the criminal law, they quoted from Justice Antonin Scalia’s dissent in Morrison to argue that “investigation and prosecution of crimes is a quintessentially executive function” which must be under the full control of the president.

It’s hard to square Morrison’s holding that a particular prosecutor can be insulated from being fired by the president with Trump’s conclusion that investigation and prosecutions of crimes must be done under the president’s full control.

So, while Dellinger has a good argument under Morrison and similar cases that he was not lawfully fired, those cases rest on the thinnest of ice. If anything, by challenging his firing, Dellinger gives the Republican justices an opportunity they’ve craved for a very long time — to overrule Morrison.

As mentioned above, TROs allow a trial court to briefly hit pause on a case until they have time to figure out what result is required by law. They typically expire within two weeks of when they were first issued.

Additionally, as an appeals court warned when it declined to review Jackson’s TRO, permitting these temporary orders to be appealed would force courts to decide difficult cases “at a breakneck pace,” because the appeal would become moot once the TRO expired after the second week. That would lead to rushed decisions by powerful appeals courts, or even the Supreme Court, which may not fully consider all the nuances of a particular case.

The Trump administration, for what its worth, argues that the Court should create an exception to the rule against appealing TROs for cases involving the president. Quoting from Judge Gregory Katsas, a Trump judge who dissented from the appeals court order declining to review Jackson’s TRO, the Trump administration’s lawyer claims that “where a lower court allegedly impinges on the President’s core [constitutional] powers, immediate appellate review should be generally available.”

But, as the appeals court majority pointed out, “none of the authorities cited by the government or the dissent hold that the rules of civil procedure and appellate jurisdiction are suspended when the President is included as a party to a lawsuit.” Basically, they argued that Trump may be important, but he can wait a couple weeks for appellate review just like any other litigant.

Ultimately, the core question before the justices right now is whether to honor the rules governing when the Supreme Court is allowed to intervene in a case, or whether to ignore those rules to benefit a Republican president.

If the justices decide that they can’t wait two weeks before deciding this case, they will significantly alter the balance of power between Trump and the judiciary — they could effectively strip trial courts of their authority to briefly pause Trump’s actions in order to figure out whether those actions are legal.

Just as significantly, if Trump prevails in his shadow docket request, it will be a clear sign that the Court is willing to wave away ordinary legal procedures in order to benefit this Republican president.