The Winning Streak Breaks

On December 20, 2025, the Supreme Court delivered something extraordinary: a loss for the Trump administration.

The Court rejected the administration’s emergency request to block a lawsuit challenging its “gag rule” on immigration judges—a policy that categorically forbids judges from speaking publicly about immigration or the agency that employs them, even in their personal capacity.

According to legal expert Stephen Vladeck, this represented the Trump administration’s “first real loss” at the Supreme Court since April 2025—breaking a months-long winning streak on the Court’s emergency docket.

But here’s the question: Why should we celebrate when the Supreme Court does the bare minimum and allows a First Amendment lawsuit to proceed?

The answer reveals everything wrong with our current Court.

The Gag Rule: Silencing Immigration Judges

In 2020, the Trump administration’s Justice Department enacted a policy that bars immigration judges from speaking publicly in their personal capacities about immigration and about the agency that employs them.

The policy requires judges to:

  • Obtain prior approval before speaking about any policy matters
  • Refrain from speaking about immigration law or policy, even when not acting in their official capacity
  • Avoid any public discussion of the Executive Office of Immigration Review (the agency employing them)

The National Association of Immigration Judges (NAIJ) challenged the policy as a clear violation of the First Amendment, arguing that it violates both the judges’ right to speak on matters of public concern and the public’s right to hear from them.

The Knight First Amendment Institute at Columbia University brought the lawsuit on behalf of the immigration judges in 2020.

Why This Policy Matters

Immigration judges are the people who decide whether individuals facing deportation can stay in the United States. They hear asylum cases, evaluate claims of persecution, and make life-or-death determinations about refugees fleeing violence.

These judges have unique expertise and insight into:

  • How the immigration system actually works
  • Problems with immigration law and procedure
  • The human consequences of policy decisions
  • Agency dysfunction and political interference

The Trump administration doesn’t want them talking about any of it.

By silencing immigration judges, the administration:

  • Prevents expert voices from contributing to public debate
  • Shields immigration policy from informed criticism
  • Hides dysfunction and political pressure within the immigration system
  • Violates the First Amendment rights of federal employees

As one attorney for the judges stated: “The restrictions on immigration judges’ free speech rights are unconstitutional.”

The case has a complicated procedural history:

2020: The Lawsuit Begins

The National Association of Immigration Judges filed suit in 2020 challenging the gag rule.

2023: Dismissed for Jurisdictional Issues

A district court dismissed the case, ruling that the judges had to pursue their claims through administrative channels—specifically the Merit Systems Protection Board—rather than federal court.

2025: The 4th Circuit Reverses

The 4th Circuit Court of Appeals reversed, ordering the trial court to investigate whether those administrative agencies remain independent from presidential control. This is crucial because if the administrative review system has been compromised by political interference, judges may have the right to go directly to federal court.

The Trump Administration’s Emergency Request

The administration asked the Supreme Court to stay the case and block any fact-finding about administrative independence. They argued that allowing discovery would be disruptive and that “unelected judges do not get to update the intent of unchanged statutes” based on recent political events.

December 20, 2025: The Supreme Court Says No

The Court rejected the emergency stay, stating that “the Government has not demonstrated that it will suffer irreparable harm without a stay.”

Translation: The Trump administration failed to prove it would be seriously harmed by allowing the lawsuit to proceed.

Why the Judges Might Win on the Merits

The immigration judges have a powerful argument: the administrative review system may no longer be independent.

After Trump returned to office, he:

  • Fired the Special Counsel
  • Fired the Merit Systems Protection Board chair
  • Signaled his administration won’t tolerate dissent from career federal employees

If the Merit Systems Protection Board is no longer independent from presidential control—if it’s been captured by political appointees who will rubber-stamp whatever the administration wants—then forcing immigration judges to use that system denies them a fair hearing.

The Supreme Court is allowing fact-finding to determine whether that’s true. If the trial court finds the administrative system is compromised, the judges can proceed with their First Amendment lawsuit in federal court.

The Broader Pattern: Presidential Control of the Judiciary

This case isn’t just about immigration judges. It’s about whether presidents can silence federal employees who have inconvenient expertise.

The Trump administration is:

  • Firing independent watchdogs
  • Removing civil service protections
  • Demanding loyalty from career officials
  • Silencing employees who might criticize administration policies

The immigration judges’ gag rule is part of this larger authoritarian impulse: experts must stay silent while political appointees make policy.

This connects directly to other Supreme Court failures:

  • Presidential immunity - Presidents can commit crimes using official powers
  • Chevron overturned - Courts, not expert agencies, interpret ambiguous statutes
  • Immigration judges gagged - Experts silenced from contributing to public debate

The through-line is clear: expertise doesn’t matter, accountability doesn’t matter, only presidential power matters.

Why One Loss Doesn’t Change Everything

Legal expert Stephen Vladeck noted this was the Trump administration’s first real loss since April 2025. That’s eight months of uninterrupted victories on the Court’s emergency “shadow docket.”

The administration has been using emergency applications to:

  • Block lower court rulings it doesn’t like
  • Get immediate relief without full briefing or oral argument
  • Circumvent normal appellate processes
  • Test the limits of executive power

And until now, the Court has been giving Trump everything he wants.

This single loss—which merely allows a lawsuit to proceed—doesn’t change the fundamental problem: a Supreme Court that routinely defers to executive power when wielded by Republican presidents.

What Happens Next

The Supreme Court’s order allows fact-finding to proceed about whether the administrative review system remains independent. The Court left open the possibility that the government could return if discovery becomes too burdensome.

If the trial court finds the Merit Systems Protection Board is no longer independent, the immigration judges’ First Amendment lawsuit can move forward in federal court.

If they win, the gag rule gets struck down and immigration judges regain their First Amendment rights to speak publicly about immigration policy and their agency.

But the case could take years to resolve. And in the meantime, immigration judges remain silenced.

Why This Matters for Court Reform

This case illustrates why celebrating a single Supreme Court loss for the Trump administration feels hollow.

The baseline shouldn’t be: “The Court occasionally allows First Amendment lawsuits challenging obvious government overreach to proceed.”

The baseline should be: “The government doesn’t try to impose unconstitutional gag rules on federal employees in the first place.”

And when it does, courts should quickly strike them down—not engage in prolonged jurisdictional battles about which forum gets to hear the case.

The fact that we’re celebrating the Court merely allowing fact-finding to proceed shows how low our expectations have fallen.

A healthy Supreme Court would:

  • Quickly recognize First Amendment violations
  • Reject frivolous government arguments
  • Protect free speech rights of federal employees
  • Not require years of litigation for obvious constitutional violations

Instead, we have a Court that gives the Trump administration nearly everything it wants on the shadow docket, with occasional exceptions that remind us the justices haven’t completely abandoned all pretense of neutrality.

Conclusion: A Rare Moment of Accountability

The Supreme Court’s rejection of the Trump administration’s emergency stay is good news for immigration judges and for the First Amendment.

But it’s one data point against a mountain of evidence that this Court routinely enables executive overreach, dismantles regulatory protections, and shields presidents from accountability.

The immigration judges may ultimately win their case. The gag rule may be struck down. Free speech may be vindicated.

But the fact that it takes years of litigation, multiple appeals, and a lucky break at the Supreme Court just to protect the obvious First Amendment right of federal employees to speak about public policy shows how broken our system has become.

We shouldn’t have to celebrate when the Supreme Court does the bare minimum. We should demand a Court that consistently protects constitutional rights, checks executive overreach, and doesn’t require a miracle for justice to occasionally prevail.

Until we get Court reform—term limits, expansion, enforceable ethics codes, or jurisdiction stripping—we’ll keep celebrating the rare moments when the Court doesn’t actively enable authoritarianism.

That’s not a healthy democracy. That’s a broken system with occasional malfunctions that temporarily work in favor of justice.

We deserve better.