The interim docket remains active — and not just because of the Trump administration

The Supreme Court is done hearing argument for October, but that does not mean it’s done making major rulings. There are several applications awaiting action on the court’s interim docket, including the Trump administration’s request to be allowed to federalize and deploy the National Guard within Illinois and its attempt to change the current rules for sex markers on passports.  

In the past two weeks, the justices resolved six pending cases, denying three requests for stays of execution from death-row inmates, a man’s request for an injunction preventing a Michigan county from enforcing against him a law on making terrorist threats, a request to require a California school district to offer faith-based opt-outs from vaccine requirements, and Alex Jones’ request for the court to pause a $1.4 billion judgment he has been ordered to pay in a defamation case brought by the parents of children who died in the Sandy Hook Elementary School shooting.

In addition to two requests for a stay of execution from the same man, four other significant cases remain, although only three likely will be resolved in the near future. (The court announced earlier this month that it will hear oral arguments in January on the fourth, which concerns President Donald Trump’s firing of Federal Reserve Governor Lisa Cook.)

Here’s a brief overview of the four pending applications.

National Guard in Illinois

The newest application, in Trump v. Illinois, was filed by the administration on Friday and centers on Trump’s effort to deploy the National Guard to Illinois. Specifically, U.S. Solicitor General D. John Sauer urged the court to pause a district court order prohibiting the National Guard’s deployment. According to Sauer, the order “cause[s] irreparable harm to the Executive Branch by countermanding the President’s authority as Commander in Chief, jeopardizing the lives and safety of DHS officers, and preventing the President and the Secretary of War from taking reasonable and lawful measures to protect federal personnel from the violent resistance that has persisted in the Chicago area for several months.”

In an opinion which followed her issuance of the challenged order on Oct. 9, U.S. District Judge April Perry contended that “[r]esort to the military to execute the laws” was not presently “called for.” She noted that although she did “not doubt that there have been acts of vandalism, civil disobedience, and even assaults on federal agents,” she did not believe there was enough justification presented for the administration’s actions.

Perry initially blocked deployment for two weeks, until Thursday, Oct. 23. On Wednesday, with the agreement of both sides, she extended her order until final judgment on the merits.

Although the application in Trump v. Illinois is the newest, it may be addressed first. The state of Illinois and city of Chicago responded to the Trump administration’s request on Monday – just over 72 hours after the request was filed – and the administration filed its reply brief on Tuesday.

Hague Convention case

Castro v. Guevara centers on a 7-year-old girl in Dallas, Texas, who soon may be forced to return to her birth country of Venezuela. Her mother, Samantha Estefania Francisco Castro, who lives with her in Dallas, has asked the court to pause a ruling from the U.S. Court of Appeals for the 5th Circuit that would require that return.

Castro and her daughter have been in the United States since 2021 and have pending asylum applications. The dispute began in April 2023, when Jose Leonardo Brito Guevara, the girl’s father, who has lived in Spain for the past four years, “petitioned a federal court under the Hague Convention on the Civil Aspects of International Child Abduction … to obtain the immediate return of [the girl] to Venezuela.” A federal district court denied the petition after determining that the girl is “well settled in her new environment in Texas.” But the 5th Circuit reversed.

With her application to the Supreme Court, Castro is seeking to block the 5th Circuit’s decision from taking effect. On Oct. 2, one day after Castro sought relief, Justice Samuel Alito granted her request for an immediate administrative stay, enabling the girl to remain in the U.S. while the court considers her case.

In his own brief, the girl’s father explained that his move to Spain was never meant to be permanent and that his mother was caring for the girl when Castro “absconded” with her to the U.S. He said he has been working to promote her return to Venezuela since he learned that Castro had left the country with her. 

Sex markers on passports

In Trump v. Orr, the Trump administration has asked the court to allow it to implement its directives for sex designations on passports. The Biden administration put in place a policy that applicants could receive passports reflecting the sex designation of their choice without providing medical paperwork. The Trump administration seeks to instead classify people based on their “immutable biological classification as either male or female” as part of carrying out an executive order on gender identity.

A group of transgender and nonbinary Americans sued to block this change to passport rules, contending that the Trump administration was violating their rights to equal treatment under the Constitution and a federal law governing administrative agencies. They also said the new rules violated their rights to international travel and informational privacy.

In April, U.S. District Judge Julia Kobick issued an order barring the government from enforcing its passport policy against all but one of the plaintiffs (she determined that plaintiff did not need such protection because his passport would not expire until 2028). About two months later, the district court issued a broader order that prohibited the Trump administration from enforcing its policy against any transgender or nonbinary person who had applied or would apply for a passport consistent with their gender identity.

Sauer came to the Supreme Court on Sept. 19 and urged the justices to put Kobick’s order on hold. He wrote that the ruling “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.”

The transgender and nonbinary litigants challenged that characterization of what’s at stake in their own filing on Oct. 6. “[T]he government has never explained how passport sex markers that align with gender identity, including the sex the person lives as and outwardly expresses, could possibly affect foreign relations—when the challenged policy undermines the very purpose of passports as identity documents that officials check against the bearer’s appearance,” the brief said.

This case has been fully briefed for more than two weeks, which means the court’s decision could come any day.

Lisa Cook’s firing

As noted above, Trump v. Cook stands out from the other pending applications because the justices have made it clear they won’t take action until they hear argument on Cook’s removal in January. Cook will continue serving on the Federal Reserve Board of Governors at least until then.

This case, like others this year on the National Labor Relations Board, Merit Systems Protection Board, and Federal Trade Commission, addresses Trump’s power to remove the heads of independent federal agencies created by Congress. Under federal law, presidents can only remove Federal Reserve governors “for cause.”

Trump attempted to fire Cook in late August, citing allegations that she had committed mortgage fraud. (Cook has denied those allegations.) Cook challenged her firing in federal court, where she secured an order allowing her to remain on the Fed board while the lawsuit continues. U.S. District Judge Jia Cobb held that the mortgage fraud allegations likely do not satisfy the “for cause” requirement because the alleged fraud took place before Cook was nominated to the Fed board by former President Joe Biden. She also argued that the firing likely violated Cook’s rights under the Fifth Amendment’s due process clause, because Cook had a property interest in her position, and as a result, she was entitled to notice and an opportunity to be heard before removal.

The Trump administration appealed Cobb’s order to the U.S. Court of Appeals for the District of Columbia Circuit, which left it in place by a vote of 2-1. The majority echoed Cobb’s concerns about Cook’s due process rights, holding that because that claim “is very likely meritorious,” it did not need to weigh in on the question of whether Cook’s firing satisfied the “for cause” requirement.

In mid-September, Sauer asked the Supreme Court to clear the way for Trump to fire Cook. He wrote that Cobb did not have the power to order Trump to reinstate Cook and described her order as “yet another case of improper judicial interference with the President’s removal authority.”

In her own filing, Cook urged the court to allow her to continue serving. She contended that allowing Trump to fire her “would upend the Federal Reserve’s longstanding tradition of independence.”

On Wednesday, Oct. 1, the justices announced that they would hear oral arguments in January on the Trump administration’s request.

The interim docket never sleeps

Court watchers have observed that the justices didn’t have much of a summer recess this year because they had several interim docket matters to address from July through September. Perhaps it shouldn’t be surprising, then, that the interim docket remains busy now that the court is back in session. However, it is quite possible that the justices will resolve several of the pending requests before they’re back in the courtroom for arguments on Monday, Nov. 3.