There are probably other candidates, but the Supreme Court’s virtually unexplained order of November 6 in Trump v. Orr, allowing the Trump Administration to implement its decision to require trans citizens seeking new or renewed passports to use their gender at birth, instead of their current gender, seems to win the award as the most shadowy of the Court’s shadow court decisions.  At least three reasons support the conclusion that the district court’s fifty-page decision, affirmed by the court of appeals in a short but persuasive memorandum, should have been upheld.

But first, as Justice Jackson’s dissent pointed out, the most important fact about this challenge is that the problem of how trans citizens should identify themselves on their U.S. passports was not a new one.  Through a series of steps covering more than thirty-three years, prior State Departments had reached the opposite conclusion, which allowed trans citizens to self-designate their gender (as well as allowing nonbinary citizens to select X).  This was the status quo on January 20, 2025, when President Trump issued his executive order requiring sex at birth to be used in all federal government documents.  However, the Court’s order never mentioned what would seem to be this crucial fact in deciding whether to grant a stay.

The Court has repeatedly said that the merits of the claim are the most important consideration.  The lower courts granted plaintiffs relief based on both equal protection and Administrative Procedure Act grounds.  On the former, the district court ruled that treating trans citizens differently was a form of sex discrimination entitled to intermediate scrutiny, but it then went on to hold that the only basis for the change in the rules was the Administration’s animus towards trans individuals, which cannot survive even rational basis review.  In response, the majority simply asserted “on this record, respondents have failed to establish that the Government’s choice to display biological sex ‘lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.’ Trump v. Hawaii, 585 U.S. 667, 705 (2018).” But the Court never said what evidence cited by the trial court was found wanting, and why, or what legitimate purpose was established by the record to offset the claim of animus.

The majority’s lack of engagement on the APA claim is similarly troubling.  Plaintiffs’ basic claim was that the State Department gave no reasons for the reversal to which the unsigned stay order responded: “Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from Presidential rules that Congress expressly required it to follow. See 22 U.S.C. §211a.”  Section 211a allows the President to direct the contents of U.S. passports, and the stay seems to have agreed with the Government that the decision to reverse the prior rules was made by the President and hence was not subject to judicial review under the APA.  But the district court found that there are three separate significant respects in which the actual rules being challenged involve the State Department exercising its own judgment and changing what the Executive Order had provided.  The most significant of these was that “it departed from the Executive Order’s definition of ‘female,’ ‘male,’ and ‘sex,’ which depend on the size of the reproductive cells produced by a person at ‘conception,’” because, as all parties agreed, those definitions were unworkable and had to be replaced.   Pet.  App. 49a.  Perhaps the majority had a response, but the order surely does not contain one.

Then there is the purpose of the passport, which is to help identify the holder.  According to the Trump order, as blessed by the Court, when a trans woman presents herself to TSA or immigration officers, with a passport that says male, what are those officials supposed to do when the passport holder looks very feminine, as does her photograph?  And since passports are often used to obtain drivers’ licenses or proof of citizenship when applying for a job or registering to vote, the mandated confusion will not be limited to those traveling outside the United States.  The failure to explain how the change to sex at birth will not produce these undesirable results for all concerned would be reason enough not to grant the stay.

The Court also made no attempt to justify the stay by citing to an overriding government interest in overturning the unanimous rulings below that simply restored the status quo.  The closest it came was its observation that “the District Court’s grant of class-wide relief enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document. In light of the foregoing, the Government will ‘suffer[] a form of irreparable injury’ absent a stay. Trump v. CASA, Inc., 606 U.S. 831, 861 (2025).”  The cite to CASA is curious because that opinion expressly left open the possibility that universal relief might be obtainable by use of a class action, id. at 849-50, which the district court had certified here. 

Indeed, this case would seem to be the perfect vehicle for nationwide relief: the defendants have an unlawful policy that applies to everyone in an identical fashion.  By contrast, granting relief to some trans passport applicants, but not others, will be both burdensome and confusing to State Department passport employees; the existing system had no workability problems; and the harms to class members are both immediate for those seeking passports (especially renewals) and serious, as shown by the district court’s findings with respect to potential violence against trans citizens and the humiliation of having their gender challenged in public. Moreover, the irreparable harm requirement was not at issue in CASA, and the citation thus appears to stand for the proposition that any time a government order is halted, that is, in and of itself, a sufficient basis for the Supreme Court to grant a stay.  If that is correct, the shadow docket has produced a sea change in federal court litigation over stays and preliminary injunctions.

As the dissent shows, there is much more to find fault with in the grant of the stay in this case.  But the Court’s continued insistence on staying well-considered lower court decisions halting unlawful executive branch actions, with virtually no explanations, is a further stain on the Court’s reputation and the confidence of the public in its rulings.

There is one other fact to consider in assessing the reasonableness of the cursory justifications that the majority gave for the stay.  The Government’s application (filed September 19) was forty pages, followed by its reply of seventeen pages filed on October 7, which together gave the Court plenty of rationales to explain its result.  Surely, it could have found something in those submissions to justify its ruling, but if not, that speaks volumes about how the Court is handling the requests by the Solicitor General for emergency stay relief.

Alan B. Morrison is an associate dean at the George Washington University Law School, where he teaches civil procedure and constitutional law.