Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. Today we’re going to talk about the Supreme Court and specifically something called the shadow docket. That phrase refers to the court’s increasing tendency to issue unsigned, unexplained orders, without any oral argument or written briefings, and sometimes in the middle of the night. Today I’m pleased to welcome back to the show my friend Steve Vladeck. He’s out with a new book called The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

Steve, welcome back to the show.

Steve Vladeck:

Thanks, Preet. It’s great to be back with you.

Preet Bharara:

So congratulations on the book, The Shadow Docket, as I said before we started recording, it has an appropriately dark and foreboding cover with a silhouetted Supreme Court building. Could you remind everyone who has not been following this, what you mean by the shadow docket and why that’s a bad thing?

Steve Vladeck:

Of course. And so I don’t think the shadow docket is actually inherently a bad thing. So it’s a catchall term, basically an evocative shorthand that a Chicago law professor named Will Bode coined in 2015 to basically refer to everything the Supreme Court does other than what Will would call the merits docket, the 60-ish big lengthy signed decisions we get every term. And Will’s basic insight, which I’ve sort of shamelessly appropriated, is that a lot of important stuff happens through orders that are typically unsigned and unexplained, that we ought to pay more attention to what’s happening in the shadows. And Preet, I mean, as you know, I think what’s happened in the last six years is that practices that had become to some degree normalized on the shadow docket have actually been used by the court in ways that impact us a lot more from abortion access in Texas to Trump immigration policies to New York and California COVID restrictions. I mean you name it. And if it’s a big federal or state policy issue, there’s probably been a Supreme Court unsigned, unexplained order about it sometime in the last five or six years.

Preet Bharara:

You start the book by talking about one such instance, the Texas law, SB 8 that we’ve talked about a lot on the podcast in the past, the so-called heartbeat bill. What happened there with respect to the shadow docket?

Steve Vladeck:

Yeah, so this was a back in the summer of 2021 when the law was about to go into effect and abortion providers in Texas had asked the Supreme Court to intervene to stop it from going into effect. Now Preet, historically, that would’ve been a very remarkable intervention by the justices. It wasn’t common as recently as the mid 2010s for the court to intervene to block that kind of state law from going into effect, even a controversial one like SB 8. But this request was coming at the end of an 18 month period where the court had intervened time and again to block state laws in blue states, often when there were procedural issues getting in the way of a ruling, often in context where the legal principles were not settled. And so when the Supreme Court late at night on September 1st refuses to block the Texas law by a five to four vote when it’s the same five, four majority that had spent the last 18 months repeatedly intervening to block controversial state laws, I think that really gave rise to a charge that Justice Kagan crystallized in her dissent, which is that the way the majority was using the shadow docket was not just unreasoned, it was inconsistent.

And the inconsistency is a huge problem because instead of being able to extract at least some modicum of neutral principles that might be explaining why the court is granting relief in one case and not in another, it turns out that the best predictor was simply the partisan valance of the dispute, where religious liberty claims would get novel procedural treatment, but established rights like the, at the time, right to an abortion would not.

Preet Bharara:

So you mentioned Justice Kagan’s dissent in that case, justice Kagan’s dissent was invoked by Justice Alito in the mifepristone case in which he sort of acknowledges, not sort of, but does acknowledge the criticism about the shadow docket, very explicitly. I think for the first time he says at the beginning of his dissent , “In recent cases, this court has been lambasted for staying a district court order.” “Based on the scanty review, this court gives matters on its shadow docket.” And then he cites to some other criticisms, is he being peevish? What’s going on there?

Steve Vladeck:

He’s being peevish and a little bit hypocritical, but he’s also, I think, missing the point. One of the things I try to do in the book is put what’s happened in the last five or six years in historical context. And if you look at the historical context, I think what you see is the court always has to have some way to intervene. And it’s not the intervention itself that’s the problem Preet it’s when the pattern of interventions doesn’t seem to be in service of any legal principle. So no one really thinks there should be no shadow docket. No one thinks the court should never intervene. And so when Alito says, “That’s the criticism,” I think he’s really downplaying the real charge. Which is that if you actually look at all of the cases, the court is deciding this way, what you see is any possible justification that would provide a persuasive cross-cutting rationale is belied by what actually happens.

Just to take one example, we saw the court repeatedly intervene during the Trump administration to allow the executive branch to carry out immigration policies that lower courts had blocked based on deference to the executive branches immigration power, based on hostility to so-called nationwide injunctions. Low and behold, during the Biden administration when lower courts have also issued nationwide injunctions of immigration policies, the court has refused to intervene. And it’s that inconsistency that Justice Alito actually didn’t even quote from Justice Kagan’s dissent in the mifepristone case. And that I think, Preet, really gets at why this just looks so bad from the perspective of public perception of the court’s legitimacy.

Preet Bharara:

Does use of the shadow docket as a tool, is that necessarily something that’s conservative or that furthers conservative jurisprudential goals or not?

Steve Vladeck:

I don’t think it has to be. I mean, I think we can come up with, and the book does come up with some examples where liberals benefited remarkably from how the shadow docket was used. Just to take two from the book, the way that same-sex marriage was legalized in 18 states in the run-up to the Supreme Court’s, much more visible 2015 decision in Obergefell versus Hodges. I think that’s an example of unsigned unexplained orders that produced what we might call pro-progressive outcomes.

The book talks about going back to 1948, how it was an unsigned unexplained order from Justice Black that allowed Lyndon Baines Johnson to win the 1948 Texas Senate race. So there’s nothing inherently partisan or political about this, Preet, I think it’s just a symptom of a broader disease where at this particular moment in time, the court has a conservative majority and the court feels no check from outside, no check from Congress, no check from the public. So that it feels, I think, unconstrained about acting in ways that are novel, about taking procedural steps that might seem unjustified.

And this is really why I wanted to write the book. I wanted to put into one place the argument for why what the court is doing right now differs in both kind and degree from its predecessors, not because it’s inherently part of conservative judicial philosophy, but really because, Preet, they can and they’ve been able to. And one of the things that’s happened over the last six years is each successive erosion, each successive sort of violation of the norms governing these kinds of emergency applications has begat more requests, which has begat more intervention and it’s just a vicious cycle.

Preet Bharara:

You sound very biblical there with the begats. Where is Justice John Roberts, the Chief Justice on this matter of the shadow docket?

Steve Vladeck:

I think one of the most interesting votes in the pattern of cases that the book talks about is Chief Justice Roberts. No one would confuse John Roberts for a liberal. No one would confuse him for someone who’s especially sympathetic to abortion or voting rights or any of these other topics and yet we repeatedly see him joining the liberal justices. Before Justice Ginsburg died in majorities that were declining requests for emergency relief, for example, in a couple of Trump era cases and in a couple of the early COVID cases. And then once Justice Barrett replaces Justice Ginsburg and John Roberts is no longer the median, we see him dissenting a lot. He dissents in these Thanksgiving Eve cases about New York in 2020. He dissents in these Alabama redistricting cases in February 2022. He dissents in that Texas abortion case in September 2021, and finally in April 2022, he doesn’t just dissent, he actually signs onto a dissenting opinion by Justice Kagan that specifically criticizes the majority’s abuse of the shadow docket.

And Preet, I think that’s especially revealing because it’s one thing for progressives to criticize what the conservatives are doing on the shadow docket, that can be dismissed, I think unfairly as simply an effort by progressive to criticize anything that conservatives do. When John Roberts is one of the people pushing back and saying, “Wait a second, this is not how we should be running on this railroad.” I would hope that that would persuade lots of folks that they ought at least pay attention and take it seriously.

Preet Bharara:

Can we pause on that because I feel like in recent years the consensus has developed that John Roberts, though he’s the chief and though he is been the chief for a while, and though he was lauded at the outset for being somebody who could bridge divides and bring people together and he’s very charming and smart in all of that… But that in recent years he has lost a huge amount of influence on the court. Fair?

Steve Vladeck:

I think it’s entirely fair and I think it’s really largely a function of where he is on the spectrum. So John Roberts, as the Chief Justice gets to be in charge anytime he’s in the majority, it’s the Chief Justice’s prerogative to assign a majority opinion to sort of guide the court when he’s in the majority. The problem is that as soon as Justice Barrett was confirmed in late October 2020, you had all of these cases where all of a sudden he was no longer in the majority. And it’s very hard to exert influence and exert authority over your colleagues when you’re dissenting all the time.

Now I think if we look at the overall data set, it’s not the case that John Roberts is dissenting all the time, but he’s dissenting on the shadow docket in a lot of contexts where the alarm bells about these procedural shortcuts ought to be ringing much more loudly than they are. It’s part of why the book really ends with John Roberts as what the book calls a canary in a coal mine.

And then I think, Preet, the real question going forward is, is there going to be anyone in the middle of the court, anyone who is now to his right, who is going to adopt any of his institutional objections to this behavior? We’ve seen shades of it from Justice Barrett and to a lesser degree from Justice Kavanaugh, but I still think there’s a ways to go. And I think that’s part of what is interesting about looking at the court this term.

Preet Bharara:

Is there any intersection between these issues relating to the shadow docket and the increasing use or invocation of what the conservatives have called the major questions doctrine?

Steve Vladeck:

So I think there is in a loose sense, I mean I think one of the catalysts for the uptick in high profile emergency applications that are gaining such visibility and have such impact is the rise of the so-called nationwide injunctions. And one of the things that actually enables nationwide injunctions is the ability of any judge anywhere in the country to look at any federal policy and say, “Oh, this looks like a question of vast economic or political significance.”

Preet Bharara:

This is a major question.

Steve Vladeck:

Exactly.

Preet Bharara:

And just to remind people, so a judge decides, clad in a robe, “This I deem to be a major question.” That then under that view permits the judge to do what?

Steve Vladeck:

So a major question once it is found and divined out of the air basically means that unless Congress has specifically granted the authority to the agency to take the step to act in the way that the major question has arisen, then the agency’s action is invalid. And so it’s basically a way of resolving all ambiguities in statutes against broad assertions of agency authority. It’s sort of a poor man’s non-delegation doctrine, restraining the power of executive branch agencies. And I think, Preet, the biggest problem with that doctrine and why it produces so much work on the shadow docket is the subjectivity of what is a major question and what isn’t, means that if you are a litigant who can find a friendly district judge, and there’s some parts of the country where you can literally pick your judge based on where you file and you can persuade them to something that’s a major question. All of a sudden you’ve got a nationwide injunction against a federal policy. Whether it’s the student loan program or the rescission of the Title 42 immigration policy. And now the executive branch is in a position of playing defense, of asking an appeals court for a stay which has a higher bar than just the lower court was wrong. You also have to show that there’s some kind of irreparable harm that you’re suffering from that lower court order. And then if that fails, go into the Supreme Court.

And so I think what we’re seeing is not all the justice’s fault. I mean, I think there is broader trends in lower court litigation behavior and judicial behavior that’s provoking some of this. But, Preet, the justices are… They’re not passive bystanders here. If there’s a real problem in how these cases are being brought, if they don’t think district courts are acting responsibly, they can and they should say so. And instead what we’re getting is scattershot one sentence rulings here and there that don’t easily fit any pattern about nationwide injunctions or about the major questions doctrine or about the sort of deference due to the executive branch. The only pattern we see is does this case benefit Republicans or does it benefit Democrats? And if that’s the best predictor of how the court’s going to rule, that’s a damning indictment of what the justices are doing.

Preet Bharara:

So we’re recording having this conversation on the morning of Monday, May 15th, in the next six weeks or so, what are the big things that are going to come out of the Supreme Court that people should be on the lookout for?

Steve Vladeck:

I mean, there’s a lot coming. The court actually has before it right now an emergency application from a bunch of gun rights groups trying to block the assault weapons ban that the state of Illinois passed after the Highland Park shooting last year. That could have enormous implications for Second Amendment litigation. On the merits docket, I mean, we have the affirmative action cases about the future of race-based affirmative action at public and private universities.

Preet Bharara:

And that’s certainly going to come to an end. Is that your prediction?

Steve Vladeck:

Yeah, I think the question is just how.

Preet Bharara:

Yeah.

Steve Vladeck:

Right? Does the court actually make it really, really hard to have any kind of diversity driven policies in public universities and private universities, or is it about race specifically? There are other major cases lurking. The student loan program case I think could be an enormously important case, especially if the court somehow holds that any of the challengers have standing, a technical but important doctrine that’s supposed to constrain the courts.

There’s this important case about the Colorado website designer and whether she can refuse to provide wedding websites to same sex couples as a matter of free speech, as opposed to religious liberty. So we’re going to see quite a lot of big rulings coming down the pipe from the justices, Preet. Part of why I hope the book will sort of resonate and dovetail with those rulings is because I think we understand the court better. We all see the court better when we are looking at everything the justices are doing and not just the merits decisions that get the most media attention each May and each June.

Preet Bharara:

So obviously your book is focused largely on the shadow docket and your criticism of that procedure and tactic. The court has come under severe criticism, certain justices in particular, and one justice actually above all, Clarence Thomas, for presumed ethics violations, not disclosing gifts he’s gotten from Harlan Crow, tuition paid for his grandnephew, home for his mother, fancy trips, private jet travel and everything else. Do you have a view on whether that will yield something in terms of an enforceable code of conduct for the Supreme Court and/or how the public views actual decisions and actual cases in light of those revelations?

Steve Vladeck:

So I think in some respect, the ethics kerfuffle is really a symptom of the same disease as a lot of what I document in the book and, Preet, the broader disease here is the extent to which the current court is both actually and acts as if it is unaccountable to a degree the likes of which we’ve never seen before from the Supreme Court. And I think a big part of that is because in contrast to how the first 200 years of the relationship evolved, Congress has basically stopped overseeing the Supreme Court, pulling levers over the Supreme Court, exerting any kind of hydraulic pressure on the Supreme Court.

And so I think part of why we’re stuck in this feedback loop every time a new ethics scandal or at least ethics story breaks, is because those who are already skeptical of the court say, “See another reason why we shouldn’t trust them.” Those who are defenders of the court say, “This is also much ado about nothing and there’s nothing to enforce anyway.” And then there are folks like me stuck in the middle saying, “Well, wouldn’t it be nice if we had some mechanism, some neutral arbiter, some accountability structure so that it wouldn’t just be up to the court of public opinion whether Justice Thomas’s behavior actually crossed the line?” And that’s a story, Preet, not just about ethics. It’s a story about inner branch dynamics where for 200 years, Congress was regularly monitoring, tweaking, affecting the court’s jurisdiction, the budget, the justices travel. The Supreme Court didn’t even have its own building until 1935. It sat in the Capitol.

And so I think one of the things that is really responsible for our current moment is not the fact that we have a conservative majority. I think we’d see similar problems with a liberal majority. It’s the problem that the justices are just completely unbeholden to anyone, and that’s going to surface and show up in all kinds of different problematic ways, all of which have the effect of reinforcing the perception that maybe we don’t want this institution to have this much power in our lives. And as someone who believes we need a Supreme Court, as someone who thinks judicial review is actually an important feature of our constitutional system and not a bug, that really worries me. Because I think the endgame there is that the court loses legitimacy as opposed to a more, I think institutionally productive and long-term useful conversation about how to put the court onto more accountable, healthier, inter-branch terms.

Preet Bharara:

So final question I’ll repeat. So are we going to get an enforceable code of ethics for the Supreme Court or not?

Steve Vladeck:

Not tomorrow and not next week, but at the rate we’re going? I think one of these days it’s probably going to be the case that Congress is going to have to do something to save the court at the very least, if not to bury it.

Preet Bharara:

God save this honorable court. In this case, God being Congress.

Steve Vladeck:

Isn’t that a terrible thought?

Preet Bharara:

On that note, Steve Vladeck, The Shadow Docket. Thanks for your insight and we’ll have you back I’m sure many times to talk about what’s going on at the court.

Steve Vladeck:

Thanks, Preet. Great to be with you.

Preet Bharara:

For more analysis of legal and political issues, making the headlines become a member of The CAFE Insider. Members get access to exclusive content, including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

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Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the hashtag AskPreet or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener, and the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah and Claudia Hernandez. Our music is by Andrew Dost.

I’m your host Preet Bharara. Stay Tuned.