ORDINARILY, the Supreme Court is a tribunal of last resort. Only after exhausting avenues for relief in the lower courts do parties tend to turn to America’s highest court—and, about 99 times out of 100, the justices refuse to take up their cases. The executive branch fares better than most litigants in persuading the Supreme Court to reconsider unfavourable rulings, but the president typically waits his turn like everybody else. Not so with President Donald Trump. Stephen Vladeck, a law professor at the University of Texas, counts 21 times Mr Trump has made unusual requests to the justices in the first 30 months of his presidency. That is compared to eight requests during the 192 months of the George W. Bush and Barack Obama administrations.

The administration's most recent plea was filed with Justice Elena Kagan on August 26th. Noel Francisco, Mr Trump’s solicitor general, asked the court to lift a district-court injunction against a rule, announced on July 16th, that “screens out asylum seekers who declined to request protection at the first opportunity”. This would deny a shot at asylum to anyone who appears at America’s southern land border having passed up a chance to apply for asylum while travelling through another country. With few exceptions, Hondurans, El Savadoreans and Guatemalans fleeing persecution or torture would have no chance of finding protection in America unless they could prove they had already sought, and been denied, asylum in another land.

On July 24th, Judge Jon Tigar, a district-court judge in the northern district of California, temporarily blocked Mr Trump’s asylum rule as an apparent violation of immigration and administrative law. The Ninth Circuit Court of Appeals upheld this ruling as it pertains to border states in its circuit (California and Arizona) but trimmed its reach. Rather than apply nationwide, the Ninth Circuit decided that Judge Tigar’s injunction should not take effect in Texas and New Mexico, states outside the Ninth Circuit’s jurisdiction, pending continued litigation and a final resolution at the district court.

The government was not satisfied with this partial win. Judge Tigar’s ruling stands a good chance of eventually being nullified by the Supreme Court, Mr Francisco wrote to the justices, and in the meantime, the asylum rule could “address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations”. Every day the new rule is not enforced in California and Arizona, Mr Francisco wrote, the “crushing burden” on America’s asylum system goes unaddressed. The government is asking the justices to let the rule take effect now in order to “deter aliens without a genuine need for asylum from making the arduous and potentially dangerous journey from Central America to the United States”.

As Mr Vladeck writes in a forthcoming issue of the Harvard Law Review, there are legitimate reasons for the government to ask the Supreme Court to step in for emergency relief. But Presidents George W. Bush and Obama turned to this strategy “only in isolated instances, many of which did not involve high-profile partisan disputes”. President Trump, by contrast, uses it regularly. In William Barr v East Bay Sanctuary Covenant, et al., the asylum case, the government could have waited for the outcome of litigation in the district court and, following a final ruling there, at the Ninth Circuit. Such an approach—respecting the hierarchy of the federal judiciary and refraining from asking the justices to intervene before lower courts complete their work—would have been in line with that of previous administrations. “As recently as three years ago”, Mr Vladeck says, the August 26th request “would have been a very surprising filing” from the solicitor general. “It’s not at all obvious that the government is right on the merits” in its claims about the asylum rule, and the appeals court has already clipped the injunction’s reach. “But times", he says, "have changed.”

What is new, Mr Vladeck argues, is not just the spike in extraordinary requests. It is the justices’ apparent "acquiescence" in the government’s game of leapfrog. Even when the court has denied Mr Trump's requests, the more conservative justices have often penned dissents to explain why they should have been granted. And only once, in Donald Trump v Sierra Club, has a member of the court pressed the point that emergency relief requires a particularly robust explanation. Sierra Clubinvolves a challenge to the president’s plans to divert military funds to begin building a wall on the Mexican border, and on July 26th the government won a 5-4 decision approving the diversion while the case proceeds. In partial dissent, Justice Stephen Breyer reminded his colleagues that “a likelihood that irreparable harm will result from the denial of a stay” is integral to the court’s analysis. The justices should, in other words, carefully scrutinise the government’s claims every time it says the sky will fall unless the Supreme Court comes to its immediate rescue.

Whether the surge in asylum applications on the southern border justifies virtually eliminating the possibility of asylum for vulnerable migrants is not really the question before the Supreme Court. Rather, it is whether America faces “irreparable harm” if the new Trump administration policy is held in abeyance for a few months while the lower courts investigate its legality. But whether or not the court grants this 21st request for emergency intervention, what Mr Vladeck calls Mr Trump’s “aggressive, jump-the-queue strategy” seems to have little downside for the administration. If he wins, he wins; if he loses, there won’t be “any real cost” and few notes of protest from the justices themselves. However useful the new game plan may be for Mr Trump, America's separation of powers may not be well served by the precedent of a president treating the Supreme Court as his go-to rubber stamp.