The Shadow Docket

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone? Did you know that the Supreme Court can issue decisions without explaining them and without even indicating which justices voted for or against? A new book by University of Texas law professor, Stephen Vladeck, traces the recent history of what's known as the shadow docket. Which conservatives on the court started using more aggressively during the Trump administration to do things like allow Texas's six-week abortion ban to take effect even before they overturn Roe v. Wade.

Maybe you saw Vladeck's op-ed in The New York Times this week called Supreme Court Justices Don't Like Being Criticized in Public, Which Is a Good Reason to Keep Doing It. That's mostly about the shadow docket too. We'll talk now about the intersection of today's conservative culture war offensive and the current court and some current news as well. The book's full title is The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Stephen Vladeck's full title is the Charles Alan Wright Chair in Federal Courts at the University of Texas. Professor Vladeck, thanks for joining us. Welcome back to WNYC.

Stephen Vladeck: Thanks Brian. It's great to be with you.

Brian Lehrer: What's a docket and what's the shadow docket?

Stephen Vladeck: The docket, these are both just really descriptive terms that are summarizing, that are encapsulating all of the cases that are before the Supreme Court at any one given time. The Supreme Court decides, I don't know, 55 or 60 what we might call merits cases each term. We've got three of those decisions today. Brian, those are the rulings we're used to. Those are the rulings where the justices write lengthy opinions. There might be concurrences, there might be dissents. The shadow docket is basically everything else that the Supreme Court does.

It was a term coined by a Chicago Law professor, Will Baude, in 2015 as a way of just saying, "Hey, the merits cases that we pay so much attention to are really only about 1% of the dispositive orders the Supreme Court hands down." Maybe we should-

Brian Lehrer: Wow, 1%.

Stephen Vladeck: Yes. Maybe we should be looking at the other 99%. Now, Brian, most of the other 99% is pretty banal. Folks are not going to get exercised about the justices giving a party more time to file a brief or turning away a meritless appeal. The real shift that the book tries to document and that the book tries to contextualize is how over the last seven years, we've seen the justices, especially the conservative justices use this other 99%, the unsigned unexplained orders in ways that have had far more significant impacts than ever before.

You mentioned the Texas six-week abortion ban, President Biden's vaccination mandate for large employers, the Mifepristone case from last month. You can hardly turn around these days without seeing the Supreme Court doing something pretty significant through unsigned, unexplained orders.

Brian Lehrer: Right. These are examples of shadow docket cases. Technically what they are is applications for emergency relief. I guess that's the temporary status of a controversial item, while the underlying case makes its way through the court system?

Stephen Vladeck: That's exactly right. If we think about the typical case taking three, four, five years to get from when it's filed to a final decision by the Supreme Court, Brian, there's often a dispute over what the status quo should be while that case works its way through, while it gets all the way to the Supreme Court. Should the status quo to be to leave the law that is being challenged in the case on the books and enforceable for the duration of the case?

Should it be to block the law for the duration of the case? There's a lot of power and there's a lot of policy that exists in those shadows, that exists in how the court responds to those kinds of requests. Brian, it really was not that common until really 2016, 2017 that you would see the Supreme Court being asked to intervene as often as it's being asked to intervene in ways that are having such statewide or nationwide policy effects.

Brian Lehrer: To continue to explain just what this is, they're not taking cases in secret, but they're ruling on them without having to disclose which justices voted for or against or disclose any rationale for these decisions. I'm curious, why are those the rules rather than have to be transparent about who and why like they do in their regular case decisions?

Stephen Vladeck: I think the short answer is just because of how things evolved. I don't think there was ever a conscious choice by the justices to say, "We're going to hand down these rulings and not explain ourselves." The book really tries to put into context, especially for non-legal readers how we got here. As recently as the 1970s, the norm if you had one of these emergency applications, if you had a party asking the court to step in at an early stage of a case, was that the application would go to the so-called circuit justice. The one of the nine justices who had geographic responsibility for part of the country.

For New York right now, that's Justice Sotomayor. The circuit justice, Brian, actually usually would provide a fair amount of process and transparency. It was fairly common for circuit justices to have oral arguments in chambers by themselves. They would write opinions by themselves. This was a helpful balance of, one, giving the parties a meaningful opportunity to be heard and a principled basis for the decision, while, two, not doing anything that would be confused as a decision of the full court.

There's this shift in the 1980s that I think is only really now apparent in retrospect. Where in response to a flurry of death penalty applications, where you have folks on death row who are about to be executed or states challenging lower court rulings that blocked executions, we see the Supreme Court move away from those norms. We see the Supreme Court move toward full court rulings as opposed to individual justices, that by tradition, are unsigned and unexplained. Brian, in the context of the death penalty, I guess that wasn't as controversial because everyone understood that the court wasn't making any law.

That however significant an individual case might be, whether a particular death row inmate in Texas or Alabama could be executed, didn't really have statewide or nationwide implications. That's the shift in the last six or seven years that I think is why this has become such an important topic for all of us. Because now we're seeing almost as a regular matter cases with nationwide implications where the justices are applying the same historical behavior. Where that I think the norms break down, where the reasons for not providing on those justifications are hard to square with why we let the Supreme Court have this authority in the first place.

Brian Lehrer: Do you see the increased use of the shadow docket by the current court as conservative agenda driven?

Stephen Vladeck: No. I think it's certainly correlates with the rise of the conservative majority, with the ascendancy of the conservative majority. I think it does overlap with the conservative agenda in one critical respect, which is that a lot of what's happening in these cases is that the justices are just voting in the context of what should the status quo be for the whole case. They're just voting what they think the ultimate answer should be.

If we're going to rule for this party or this state three years from now, why don't we just rule for them today? That I think is not inherently conservative, Brian, but I think it is an argument that has become more common among the conservative justices that all that matters is the underlying substantive legal principle and we can not be troubled by the pesky procedural check boxes standing in our way.

Part of the story I think is also a little bit complicated on this front. I'm very critical of the current conservative majority, but I don't think it's anything about the fact that they're conservatives that explains this behavior. I think it's actually of a piece with a broader phenomenon that we're also seeing in the ethics space with all of these stories about Justice Thomas. Where the court has just become increasingly unaccountable as an institution and just increasingly unworried about being reigned in by the political branches, unbeholden to public pressure and criticism.

That to me, again, is not a story about conservatism in general, it's just if we had a liberal majority right now, I would think the court would be just as unaccountable and it would just be different people criticizing it.

Brian Lehrer: Oh, interesting. I want to get into just how much power the Supreme Court should have in your opinion. Let me invite listeners in here, your questions or opinions about the Supreme Court, 212-433-WNYC. You can call or text 212-433-9692. Especially the so-called Shadow Docket that our guest, University of Texas law professor Stephen Vladeck's book is about all these applications for emergency relief while the underlying cases get argued, which sounds a little wonky but we're hearing the big implications it has for abortion rights, for migrants rights, for public health policy. We can go broader too onto current cases. Professor Vladeck mentioned that the Supreme Court issued three decisions this morning, we will touch on them as we go, or what he's seeing in Texas, or other southern states as the culture war rages on abortion rights, trans family rights, migrant rights, gun rights, and other things, using the courts, among other avenues. 212-433-WNYC. Call or you can text today 212-433-9692.

Let me get right to that question about the amount of power because the term 'shadow docket' may ring as sinister to Justice Alito, as he has said and says it's an unfair term because it implies something that isn't real, but your book title goes much further. It says, "The court is using stealth rulings to amass power and undermine the republic." Accusing the Supreme Court of purposely undermining the republic is pretty strong stuff, Professor Vladeck. Does the book back up that title?

Stephen Vladeck: I think so, Brian. I guess readers will have to decide for themselves, but I think that the place where that charge-- and I thought a lot about that part of the subtitle because it's provocative. The place where I think the argument really starts to hit home about how these rulings are undermining the structural relationships that the constitution creates for our system is in the election cases.

If we look at the Supreme Court's use of unsigned unexplained orders in election cases, let's just go back to last year. Last winter in February, the court issued an unsigned unexplained order in a pair of redistricting cases out of Alabama, where lower courts had both held that Alabama had to redraw its US House districts because of its seven-member congressional delegation. It had only created one so-called majority-minority district, even though the population of the state is 27% Black. The lower court said, "You need a second majority-minority district."

Brian, I don't think it's speaking out of school to suggests that in a state like Alabama such a district would almost certainly be a safe Democratic seat as opposed to a safe Republican seat. Well, the Supreme Court steps in and issues a stay of that rule that allows Alabama to use its unlawful maps throughout the 2022 midterm cycle. The exact same thing happens a couple of months later in Louisiana, and a couple of other lower courts, one in Georgia, one in Ohio, follow suit and say, "Well, yes, we actually think these maps are unlawful, but the Supreme Court blocked the rulings of our sister courts in Alabama, Louisiana, so we're not actually going to block these maps ourselves."

Brian, you can draw a straight line from those rulings to somewhere between three and six or seven House seats. Right there, we're talking about which party controls the House of Representatives in the current Congress.

Brian Lehrer: Are you accusing the Republican-appointed majority on the court of trying to strengthen the Republican majority in the legislative branch?

Stephen Vladeck: I don't think it's quite that conscious. I think the larger point is that if the Supreme Court is going to be intervening in this respect, and if the court is going to be having these effects on our elections, which is not exactly new, the court owes it to us and it owes it to the system to provide an explanation. That's, Brian, not just me. I mean, the court has said historically over and over again that its legitimacy comes largely from its ability to provide principle justifications for its decision-making, not because you and I and listeners are going to agree with the principles that the justices are espousing in these rulings, but at least hopefully, we will agree that they are principles.

When you are missing that in the context of these unsigned unexplained orders, the fact that those orders have this remarkable tendency to favor Republicans and not favor Democrats, really, I think does get to the charge that the subtitle levels that these kinds of rulings, not in their bottom line but in their lack of rationale and in their inconsistency really are fundamentally inconsistent with the role the court is supposed to play in our republic.

Brian Lehrer: University of Texas law professor Stephen Vladeck with us on his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Danny in Massapequa, you're on WNYC with Professor Vladeck. Hi, Danny.

Danny: Good morning, guys. You point out the Louisiana and the Alabama redistricting, but this has been going on for 200 years. We had an equally ridiculous redistricting process in New York. I believe the Supreme Court has long tended that they are not going to get involved in it. It's not their domain. Can you imagine the anarchy if every 10 years, the Supreme Court had to get involved with 50 redistricting lawsuits because everybody sues everybody, and finally, you just have to let the state legislators hammer out their own agreement. It can't possibly be the Supreme Court.

My main question is since everything seems to end up in lawsuits these days, is that the real reason why the Supreme Court is issuing so many more rulings on emergency rulings because everybody sues? If the Democratic president says something, 14 Republican attorney generals. It's the other way around, of course. Everybody's suing everybody and in a way to bypass regulations and law. Let legislators make laws. I don't think the Supreme Court wants to make laws. I just think they want to define whether they're legal or not, but they're not going to get involved in the actual making of laws and this is what I think people are looking for.

Brian Lehrer: Danny, thank you. Interesting question. Professor?

Stephen Vladeck: I think Danny is absolutely right, that there's a broader problem in our system right now, which is congressional dysfunction, and that congressional dysfunction basically requires and enables presidents of either party-- I mean, we've seen this from presidents who are Republicans, we've seen it from presidents who are Democrats, Brian, to innovate, when it comes to regulations, to try to govern through executive orders and through interpretations of statutes that may or may not be correct. That in turn precipitates all of these legal challenges. In that respect, I think Danny is absolutely right.

The messier part here is when it comes to the total number of cases the Supreme Court decide in, that number is actually going down. If we look at the so-called the merits docket, the big fancy cases that get the full nine yards of process, that get multiple rounds of argument and an opinion, the court is deciding fewer of those today than at any point since the Civil War. This term, the court's going to decide probably about 57 cases that way, it's going to be the fourth year in a row the court didn't get to 60. Before 2019, Brian, the last time the court was that low in total merits rulings was 1864.

On the merits docket, the court is actually doing less. The tricky thing about Danny's question is, why would the increase in government by regulation necessarily create more emergencies? That's where I think the connection maybe breaks out. That's where I think part of what's happening is that the current court has softened in some pretty significant ways, what it means to have an emergency. Where 20, 30 years ago, there would be a real genuine-- outside the death penalty context, a real litigation emergency justifying emergency intervention from the Supreme Court maybe once a year. Now, we're seeing it once a month, if not once a week.

That, to me, is as much on the justices, Brian, as it is on the breakdowns elsewhere in government. If the justices are troubled by behavior of other institutional actors, if the justices think lower courts are being too aggressive in blocking executive branch policies, Brian, they can say so and they can do something about it. Instead, all we have are these up-and-down rulings with no rationale. Where, just to take one example, you see lots of Trump-era immigration policies that are blocked by lower courts, and then unblocked through unsigned unexplained rulings by the Supreme Court.

Then when we get to Biden administration policies, similar policies that are blocked by lower courts, now the Supreme Court is not unblocking them. Danny is right that there are broader problems here that are explaining at least some of the phenomenon. My critique and what the book really tries to document is that that doesn't explain why the justices are acting inconsistently. It doesn't explain why the justices are not explaining themselves and providing guidance to lower courts and to government actors. That's why this just looks so much worse, right? That's why it looks like partisan political behavior by the justices.

Brian Lehrer: The other accusation in the title that the court is using this stealth docket to amass power. Do you see the Supreme Court as in a competition with the Congress and the presidential branch over who has more say on things?

Stephen Vladeck: I think if it's a competition with Congress, I think Congress declared defeat a long time ago. Brian, one of the stories that the book tries to tell, especially for folks who are less well versed in this history, is how this is actually a critical part of how the Supreme Court became so powerful. Which is a 50-year-long back and forth between Congress and the court starting in the late 19th century about the court's docket, that is to say which cases the court would hear, about the court's literal building. Right until 1935, the Supreme Court actually sat in the Capitol. Getting it out of the Capitol was one of President and then Chief Justice Taft's big plans for making the court more autonomous.

Brian, I think the court has claimed a ton of power from Congress, both informally and formally, that we see today most directly in its docket. The court today, when it takes a case up on the merits, it is deciding in almost every case. Not just whether to hear the case or not, that is to say it has discretion over almost all of its docket, but even within the cases it's choosing to hear, the court has claimed the power to decide which questions it wants to decide within that case. Just to take one example, the huge New York Second Amendment case from last term, Bruen, the court, in that case, was presented with two questions presented.

When you write a petition to the Supreme Court, the first page lists, "Dear Supreme Court, here's what we want you to answer." When the court granted review of that case, they rewrote the question presented. They said, "No, we're not going to grant the questions you want us to decide, we're going to grant your case to decide the question the way we have framed it."

Brian Lehrer: They gave even more expansive gun rights to people from out of state while they're in New York.

Stephen Vladeck: Exactly, and indeed in a ruling that actually has ramifications far beyond New York. I don't expect everyone to agree with each jot and tittle of the critiques in the book, but I do think that once folks really come to appreciate how, what we call certiorari, the discretionary power the court has over its docket enables the court to basically pick and choose not just the cases it hears, but the questions it decides within the cases it hears. Now we start to see part of the story of how the court has amassed all of this power, and, Brian, how Congress' acquiescence has led to a fairly fundamental breakdown in the court's accountability.

Brian Lehrer: Would you say that word again because I'm never sure how to pronounce it when I come upon it? Certiorari?

Stephen Vladeck: There's a debate among lawyers, whether it's certiorari or certiorari, whether it's four syllables or five. That's why we all abbreviate it to cert. A writ of certiorari is the technical term basically for how the Supreme Court takes up most of its appeals. If I lose a case in a federal Court of Appeals and I want the Supreme Court to hear the appeal, I file a petition for a writ of certiorari basically saying, "Hey, Supreme Court, would you please take up my case?" It's entirely up to the justices whether or not to say yes. It takes four votes to say yes, although that's not written down anywhere.

The norm is that whatever the court decides with regard to taking up my case or not, it's not going to explain itself and it's not going to tell us what the vote count was.

Brian Lehrer: We just have a few minutes left and I want to touch briefly on the three Supreme Court rulings that came out this morning. Notably, they were all unanimous, but a closing question about the ideas in the book and the Supreme Court amassing so much power as you were just describing, what's your take on the right amount of Supreme Court power? We want checks and balances in our system, and I'm thinking of what's happening in Israel right now, where the elected government is trying to weaken the court so the elected conservatives can have their way without that friction.

From a progressive or liberal perspective, there might be a tendency to root for a strong court in Israel and have rooted for a strong court when it granted abortion rights in the 1970s here, or gay marriage rights in 2015, but to now say, "Oh, this court has too much power." I'm asking, where's the single standard, ideally in your opinion, for how much power this branch of government should have regardless of what the politics of the current issues are?

Stephen Vladeck: Yes, I think this is where I'm a bit of an idiosyncratic centrist, an institutionalist. Brian, I think the short answer is there's no bright line, but that the mantra ought to be what James Madison wrote in Federalist 51, that ambition must be made to counteract ambition. I want a strong court, I'm the rare progressive who thinks that even today we need a strong court, but a strong court is not an unaccountable court. Congress has tons of levers that historically it has pulled to keep the court in line and that it just has stopped polling over the last 25, 30 years. Even though, Brian, if we look back across history, we've seen the Supreme Court be pretty strong for at least most of the post civil war era.

To me, these things are not intention with each other nearly as much as defenders of the current court portray them to be. You can have a strong court that's also accountable to Congress, where Congress is preventing the court from getting too far out of kilter. You can have justices who have ambitions and agendas for where they want to take the court as an institution as long as you have Congress as an institution pushing back. I think the root of most of the evils with regard to our contemporary Supreme Court is not so much the identity of the justices on it, but the complete breakdown in Congress asserting any kind of institutional authority over the court in ways that basically leave it to whoever can control a majority of the court to go in whatever direction they want to damn the torpedoes, full speed ahead.

Brian Lehrer: Before you go, we are now entering that dramatic season, late spring through the end of June when the momentous decisions of the current term get handed down every year. Three decisions this morning. I see they're all unanimous, so not everything breaks down along ideological lines as much as we think.

Stephen Vladeck: Well, if I can spoil the punchline though, Brian, one of those decisions only looks unanimous. The Clean Water Act case, Sackett vs. EPA, is actually 5-4. It's unanimous that the Sacketts win, but it was actually 5-4 with Justice Kavanaugh joining the three Democratic appointees in a much narrower ruling that actually would not have gutted the EPA's authority to regulate wetlands quite so much as Justice Alito's opinion for the majority does. Let's not get too optimistic about the court.

Brian Lehrer: Wait, is the real headline, "This morning, the Supreme Court gutted the EPA's authority to protect US wetlands"?

Stephen Vladeck: Gutted, I think is my view. Certainly at the very least dramatically limited. In a context in which even Justice Kavanaugh took real issue with the analysis in Justice Alito's majority opinion.

Brian Lehrer: Are the other two even worth mentioning?

Stephen Vladeck: Only to legal nerds. I think one of the things that we're seeing, Brian, is that the court is clearing out the cases that are of interest only to lawyers and that we're in for a very, very busy June when it comes to the cases that are of much higher profile interest to the rest of us whether it's affirmative action, the ability of private businesses to discriminate against same-sex couples, voting rights, you name it, it's going to be quite a five weeks at the Supreme Court.

I think though, the last thing I would just say is let's just not fall into the trap of thinking that the court is the sum total of these controversial and divisive merits rulings. They're obviously enormously important, but one of the real goals of the book is to persuade folks when they think about and when they talk about the Supreme Court to look at the rest of what the court is doing and not just the high profile stuff that comes down in June.

Brian Lehrer: Obviously, listeners will be on the high-profile stuff as it comes down in June. For today, we thank University of Texas law professor Stephen Vladeck, whose new book is called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Thank you so much. Good talk.

Stephen Vladeck: Thanks, Brian.

 

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