We talk (and argue) with special guest Steve Vladeck about his new book, The Shadow Docket, just published by Basic Books. Steve explains why it is important to educate the public about the Court's use of unsigned and sometimes unexplained orders, and how it is changing. Will and Dan press him on whether his criticisms go too far . . . or not far enough.
We talk (and argue) with special guest Steve Vladeck about his new book, The Shadow Docket, just published by Basic Books. Steve explains why it is important to educate the public about the Court's use of unsigned and sometimes unexplained orders, and how it is changing. Will and Dan press him on whether his criticisms go too far . . . or not far enough.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, this is an extremely special and rare episode. We are not usually a show that has guests, but we have with us a guest, and it is Professor Steve Vladeck from the University of Texas, a school of law, who is here to talk about a very, very important new book he has written called The Shadow Docket, and it has a provocative subtitle. Steve, do you want to say hello and then give us the subtitle?
Steve: Sure. I'm honored that I get to break into the ranks of guestdom on the podcast. Yes, the subtitle is definitely provocative. How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Some might even say hyperbolic, although I aim to persuade you that it's not.
Dan: This is a great venue for you to come, talk about the book. Believe it or not, I actually read the entire book and really enjoyed it. So, I have some stuff to talk about. But here's what I thought. It might make sense, Steve, for you to do a shorter, capsule overview of the book and its leading arguments. Then, I would love to hear from Will, because Will obviously is either the progenitor or the popularizer of the Supreme Court phrase "shadow docket," at least as applied to the Supreme Court of the US. I imagine he has some thoughts, and then I can get in the mix, and we continue that conversation.
Steve: Yeah. I should say that every time I give Will the credit he deserves for coining the term, I get yelled at by a whole bunch of Texas lawyers because the term was used to refer to a different phenomenon on the Texas Supreme Court as early as apparently 2006. So, I think we can focus on the use of the term to describe the US Supreme Court and we'll be safe.
The book really has two big, I think, pieces. And I think it helps to divide them because I think one of them is probably not remotely controversial, and I think one of them is a little more controversial. The non-controversial part of the book, which is really, I think, building off of Will's really important earlier work, is the idea that we really ought to pay attention to the court as an institution holistically, that thinking of the court and talking about the court and for the press covering the court as the sum of the merits docket misses a lot of really, really important, interesting, revealing stuff, much of which happens through unsigned, unexplained orders or per curiam opinions, summary reversals, like what impelled Will, I think to first start writing about this in 2015. I think, as we're seeing lately, lots of it, has nothing to do with rulings at all and involves the Justice's behavior right on and off the bench.
I suspect I'm not getting into any trouble by suggesting that we ought to have that conversation and not just, we, the law professors and the legal podcast nerds, but we should be educating the public about everything the court does in a way that's meaningfully accessible. A big part of why I wrote the book was to try to make this very technical, often esoteric topic more accessible to more people. I think part of that is also telling a story about the history of the court, which I really try to do in chapter one about just understanding how we got from the court of the founding era, Hamilton's least dangerous branch, to a court that today seems to be involved in virtually every high-profile dispute of social domestic policy, seems to be controversial in almost everything it does, and what happened along the ways. There's a lot in there about the really seismic changes that the court goes through in the early 20th century and the role of Taft. My man, William Howard Taft.
That, I think, is the just hopefully consensus building, educational, illuminating part of the book. I do that to set up what is really the second part of the book. I think the part that's more about the subtitle, which is to make the argument that over the last six years, so really after Will had had pitched the tent on the shadow docket and summary, rulings so that no one can blame him for what I'm saying. Not that anyone ever can confuse us for each other.
Over the last six years, we've seen the court's behavior especially, although not exclusively, with regard to emergency applications, one piece of the umbrella term that is the shadow, docket change in some pretty profound and significant, and I would say, problematic ways. The big changes are not just how often the court is intervening, that's often how it's caricatured, but rather the contexts in which the court is intervening through emergency applications. Not so long ago, it was virtually unheard of for the court to use emergency applications in ways that directly affected statewide or nationwide policies. I think it's safe to say when both of you guys clerked that the overwhelming majority of the emergency docket was just last-minute death cases, which are, of course, enormously important, but tend not to be especially impactful beyond the particular case at hand. So, that's a huge shift, that this has now become such a prevalent part of the court's emergency docket by itself is a big thing.
And then, as that has happened primarily since 2017, we've seen two features of those interventions that I think are independently troubling and especially troubling together. The independent features are one, this is, I think, maybe where Will and I are going to start disagreeing a bit. I think a lot of the interventions have been inconsistent, at least from the perspective of the kinds of neutral legal principles that would explain the unexplained rulings. Like if we sat back and said, "Here's the best case for why the court intervened in case X and case Y," those best cases don't actually hold up. That we're actually not seeing the arguments that seem to prevail in cases in one partisan valence prevailing when the case has similar arguments, but a different partisan valence. So, there's the inconsistency. This is one of the charges Justice Kagan levels in her dissent in the SB 8 case.
This is the other part where I think there's both a descriptive and a normative claim. The court treating these decisions, at least some of them, as precedents. Not just basically, like, affirmatively chastising lower courts in at least one or two cases for not following unsigned, unexplained orders. It seems like to me, the phenomenon that is so problematic and the reason why I think this gets me all the way to amassing power and undermining the Republic is that we're seeing this not just in cases of national policy but we're seeing this in cases of congressional elections where the interventions by the court or the non-interventions by the court can, I think, be said without a lot of exaggeration to be directly affecting which party is controlling which chamber of Congress. That, I think, is something that maybe we're okay with but I think it's the descriptive part that I think gets us to why this has such democratic implications.
So, that was a lot. I'm sure I provoked you guys a little, but that's the basic gist.
Dan: I'm less provoked. I do want to let Will out of his cage in a minute. I wanted to say a few things about how much I enjoyed the book before we do that. Steve, you mentioned the history part of it, and I really, really liked that. Before I jumped into it, I wasn't sure the extent to which it was going to be a book about history. You start with amazing example that I had known about for a long time but hadn't seen talked about recently of the battle over whether to enjoin the bombing of Cambodia in between Justice Marshall and Justice Douglas, I thought that was a great anecdote. I also really liked how you did stuff about the election of 1848 in which Lyndon Johnson arguably steals the election-- because I remember I had read Means of Ascent, the Robert Caro book about that period and remembering marveling--
One thing that book gets into that I don't think you really have space to get into is the strategy behind the legal team, Abe Fortas, future Supreme Court Justice, later disgraced former Supreme Court Justice, is the mastermind at figuring out exactly what relief to request and how that is going to get the court to intervene in a helpful way. So, there's some really, really great anecdotes in there that I think set up what's to come later.
I also just found it really useful to put in context all the shadow docket stuff that happened in the last few years, individually that I was aware of, but it's hard to keep track of everything and remember everything. I thought that you marshalled all that and explained it in a really, really helpful way. We're going to talk more about the normative side a little bit but let me kick it over to Will to see if he has an opening statement before we really get into the fray.
Steve: [laughs]
Will: Well, I'm going to start by completely agreeing. The historical context in the book is super valuable and super important. I too love the bombing of Cambodia chapters. And some of my favorite parts of this historical context are things that could not have been demanded by your publisher. So, I know you must have fought hard to do them. Like, just to be incredibly legally precise about what was the exact posture of the bombing of Cambodia stay, and the same thing for several of these. These are stories you've heard before, and anybody who listens to this podcast has had the experience of reading a newspaper article about a case and then trying to think what actual things could have happened at the law that would make this newspaper article describe the case in this way, this is the first time I've just seen somebody with esteemed lawyerly skill actually try to go to ground and like, "What were the motions? What were the procedures? What actually happened at a lawyerly level?"
Steve: The publisher hated me for that.
Will: Especially early on, that was a flex that got my confidence in being willing to keep reading the book. That said, [chuckles] sometimes one wonders if the second half of the book needs to listen to the first half of the book. There's a way in which the second half of the book makes a lot of claims or implications about the anomalousness of what is happening now without running them to ground with the same level of historical context about all sorts of different periods. I happen to be spending some time now in Reconstruction. And boy, turns out the shadow docket shenanigans during Reconstruction would put this court to shame. The court could just random original writs and use them to hold all sorts of district court proceedings that had no jurisdiction over and stop district courts from granting habeas to all sorts of things. Now again, I'm not sure that Justice Alito or Justice Barrett would be happy to have somebody defend them by saying it's no worse than what the court did in the 1870s. But it makes you wonder how to think about the things that are happening today in that historical context, that's I guess, thing one.
And thing two is, is that fact going to disserve the book's purposes? One purpose of the book could be to call the Supreme Court into disrepute and cause people to think the Supreme Court is bad, more partisan, less legitimate, whatever, than you thought before. So, you're just like, "We'll downgrade the Supreme Court on our approval meter."
Dan: Maybe even that they're undermining the Republic.
Will: Well, I take it that's bad. There are some people who seem to think that's good.
Dan: [laughs]
Will: But they're not listening to this podcast. Another goal of a book like this though might have been to try to push us towards reform. The more it seems like the shadow docket critique allegation is a partisan one, a partisan allegation against a partisan court, the more maybe reform becomes impossible because then everybody dicks in on either side, like you're either Republican and therefore pro-shadow docket, or a Democrat and therefore anti-shadow docket. Maybe we just think reform is not possible, or maybe reform is only possible if we first get everybody really mad. But I wonder about that.
Steve: Can I respond to those in reverse order?
Will: Of course.
Steve: I think, Will, two things can be true. I try very hard, frankly, to the point that I get a lot of criticism from people to my left to make this point that the current abuses of the shadow docket are by a conservative majority but that they are not inherently conservative. That there's nothing about the court's current behavior that is necessarily a feature of the fact that the current majority is six very conservative Justices as opposed to six very liberal Justices. And that it's possible that if the roles were reversed, we'd be seeing the same problem, especially if one is sympathetic to my broader thesis that some of this is a symptom of the broader disease of congressional laissez-faire of congressional abdication of a checking function.
To me, that's why, Will, your former boss, the Chief Justice, is, I think, such an important part of the story because I really think it's hard to explain his behavior on the shadow docket and still think that this is a partisan critique of a partisan court. Unless we are adopting the John Roberts as secretly a liberal squish view, which I don't usually associate with either of you. It seems like there's significance in when he's choosing to dissent, in when he's choosing to join a Kagan dissent that directly accuses the majority of taking procedural shortcuts.
And I will just say, and maybe, Will, this is just where you and I come at this differently, because we come from different priors, I have a really hard time looking at the election cases and not buying on the partisan critique. The court's non-intervention in the Florida felon disenfranchisement case in the summer of 2020 just looks terrible when you consider, one, how often the court was intervening, and two, that the posture of the Florida case is literally the posture of Purcell, where the 11th Circuit basically did exactly what the court yelled at the 9th Circuit for doing in Purcell, and the court this time sits on its hands. I expected the subtitle and the charges that I level toward the end of the book to rankle ire-- I don't know, but to provoke.
Dan: Will does, for sure.
Steve: I mean it and I intend to own it. This is not an indictment of every single ruling the courts handed down in the shadow dock in the last couple of years. But I think in the election context, there's a fair amount of I think, not by you, Will, but by the Justices denial that these appearances are unfair and unrealistic and not actually what describes the court's behavior.
Will: One might say, not saying this is my view though, that this is just the merits. The other difference between Purcell and the felon disenfranchisement case is how the court thinks about the merits of the claims in different areas, and maybe more generally, I guess. Could you write the same book, not about the shadow docket, but just call it The Docket Docket? How the Supreme Court openly and notoriously uses 70-page rulings to amass power and undermine the republic in these things called opinions, which adheres through after oral argument. I take it the answer is no. There's something different.
Steve: Yes.
Will: And also worse or just different?
Steve: So, let me elaborate on that. I don't want to not respond on the historical point too. Don't let me off the hook on that. I'm about to probably get into trouble with everyone for this. I think that some of what's happening on the shadow docket is meaningfully worse from an institutional perspective than Dobbs or Bruen or West Virginia v. EPA.
Will: You are going to get in trouble. [chuckles]
Steve: I know. So be it. When you grow up between two sisters, you're used to never pleasing anyone. The reason for that is because I really do think that there is a difference between the court embracing principles that I completely disagree with, principles that I find maybe even in some cases, bankrupt, but principles versus decisions where no principles are articulated, which allows the court to act then inconsistently in the next case. Well, to your point about the merits in the felon disenfranchisement case, Purcell is supposed to not be about the merits. The whole point of the Purcell doctrine is that the merits fall aside, and the only question is the likelihood of voter confusion. If the court for one day wanted to abandon Purcell, by the way, because Purcell sucks, I'd be on board with that. But how about saying so?
So, the phenomenon to me, no, I don't think the point is that the Docket Docket is bad, and this is just a piece of this. I think that there is something fundamentally less judicial about intervening in these contexts in ways that are inconsistent and unexplained than even the most controversial merits decisions that we just disagree with because we can't understand how five justices could think the thing that they think.
Let me just briefly touch the historical point, because I don't want to lose the thread. There's no question, and I think this comes through in chapter one-- I hope it comes through in chapter one, that the court has spent much of its modern history, certainly from the Civil War onwards, which is the point at which the court's docket gets to the point where these become relevant considerations, trying to figure out how to prioritize what it does. I use the Gunther quote about Bickel. He wants the court to be 100% principled 10% of the time. This is why, for example, the chapters on certiorari are much more ambivalent about whether certiorari is a bad thing because I think there are arguments that certiorari is, if not necessary, then at least incredibly valuable. Versus using emergency applications in a similar vein.
The reason for that, this is, again, maybe me being a very idiosyncratic federal courts nerd, is because emergency relief is not supposed to be only about the merits. That's true as a matter of history. It's true as a matter of tradition and precedent. It's true as a matter of statutory interpretation. Will, if you and I went ten rounds deep into the history of the All Writs Act as a basis for the Supreme Court exercising emergency equitable authority, I suspect we would agree that there are other things that are supposed to govern the court's exercise of its discretion in that context than just the merits. If the court doesn't want that to be true, it has the authority to reinterpret the All Writs Act. Of course, it would run into statutory stare decisis at that point.
But again, all of these things are fixable or are redressable, if only the court would explain itself in ways that would then bind it. That, to me, is the original sin of the shadow docket, is not that every single thing the court does is unexplained. I think it's inevitable that the court's going to have to do a fair amount of stuff that doesn't explain itself. It's using unexplained rulings in the way they've been used in the last six or seven years, which I think really do differ historically from much of the precedents.
Dan: Will, do you mind if I jump in with a question or do you want rebuttal time?
Will: No, it's okay. We should promise Steve he's going to get the last word.
Steve: Are you kidding me? This is fun.
Dan: Well, I mean, he is until we record another episode, and you can just say whatever you want.
Steve: Also true.
Dan: I think this goes to-- I've lost track. I think this is Will second and your first thing, Steve. One thing I underlined when I was reading is this thing on 276 where you say, "What happens on the merits docket is only possible because of the evolution of the shadow docket." I thought that was maybe a claim that I wanted to hear just about. I mean, you convinced me. I'm maybe more convinced than Will is that the sum total of what they're doing is hard to explain without some-- bad motives is not necessarily the right thing, but some theory of what the court's doing where it's maybe even inadvertently being partisan. I still would like to be-- and I think that's bad and I think they're doing some things that are very troubling and you highlight a lot of them. I guess I wonder whether the shadow docket is really just letting them speed up some of this stuff in the sense that, yeah, in the religion stuff, it basically let them go halfway towards overruling Smith. I don't think they got all the way there. You can argue about exactly whether they're doing that, whether it's consistent with precedent, but they presumably are going to be able to do that if they want to. If it seems like where it's where they're headed, they'll do that in the next few years.
Imagine a world where we just-- it's hard to exactly know what to keep constant here, but if we just get rid of the shadow docket or really limit it and put to one side the question of how the power the lower courts have, let's just ignore that. And then we step back and we say, in five years from now or seven years from now, is the law going to basically the law that they lay out through merit's opinions basically going to just look like the sum total of the stuff they were doing with the shadow docket seven years ago? Or is that wrong? Is there really, in the end, going to be a meaningful, substantive difference in the law if they're not able to do the shadow docket? Which I took to be what you're saying in this quote that I've pulled out.
Steve: This is going to be a longwinded answer for which I apologize in advance. I think there are examples of both. There are examples where the emergency application ruling is clearly just a signal of what's coming on the merits docket. You could look at the SB 8 case, as a harbinger of what was coming in Dobbs, indeed the preface. I think you could defend, at least in the abstract, the idea of intervening earlier as a stopgap. Like, "We know we're going to get this eventually. The law might as well be today what we think it's going to be tomorrow." I think this is probably where we're heading in the Alabama redistricting case in Merrill v. Milligan. I'm going to be fascinating to see where the Chief is in Merrill because he dissented on the shadow docket.
But the pattern of the last five or six years includes so many examples where the shadow docket ruling was the only time the court ever had the issue. Of all the Trump policies that get to the court on the shadow docket, only one of them ever comes back on the merits, and it's Travel Ban 3.0. The rest of them never make it back to the court, at least before Trump leaves office, at which point those cases get chucked.
And, Dan, you mentioned the religious liberty cases. I think this is a really important contextual point. If we look at Tandon v. Newsom, Tandon is the April 2021 ruling on the shadow docket, where the court embraces this new most favored nation theory, the Free Exercise Clause. Will and I have fought before about whether that was exceeding the authority on the All Writs Act, whatever. Let's put that aside for a second.
What no one can deny is that at the time the court is deciding Tandon, it has both Fulton under submission, which presents the overruling Smith question fully, fairly, and de novo, and it has a cert petition in South Bay III, which presented the specific question of applying the current Free Exercise Clause to California's COVID restrictions. In cases like the Alabama redistricting case, yes, I see the allure of the argument that the justice should just be allowed to signal where they're going, but there are so many cases where that's not what's happening.
Dan, just the last thing I'll say, and there are cases where the opposite happens. The rescission of MPP, this is the Trump era, remain in Mexico migrant protection protocols. The Biden administration's attempt to rescind MPP is subject to a nationwide injunction by everyone's favorite Amarillo-based district judge and the Fifth Circuit denies a stay, and the Biden administration goes to the court for a stay, and the court denies a stay over the dissents of-- or at least the public dissents of the three Democratic appointees. In a context where the court repeatedly issued stays of Trump policies.
One might respond, "Well, the court's more likely to be hostile toward a Biden administration immigration policy than toward a Trump administration immigration policy," except that when that case is decided on the merits, the court rules for the Biden administration. So, I think the notion that we should be okay with this because the court is just signaling what's going to happen on the merits has to grapple with cases where actually the court comes out the other way and cases where there is no merits, and indeed, where the court is consciously issuing cases on the merits docket to issue the rulings in the context of emergency applications.
Will: All right, so maybe we have a zone of agreement here, although I'm not sure. Here's my take on these inconsistencies. The justices are political. Of course, they're political, contrary to all of our iTunes reviewers who think I don't know that. The Justices have political instincts and that often influences their priors in these cases. In the merits cases, they do a shockingly good job of getting over their priors, like aligning them with their law. Again, maybe they don't do as good a job as they should. Maybe other human beings do a better job, but they do a shockingly good job. Such a good job that we come to expect that as the normal. And it's the standard we hold them to and maybe rightly so.
It turns out that in the shadow docket cases, they don't do as good a job. And there are a lot of reasons for that ranging from less time to sit with the case, so you're more likely to go with your gut, no time for the Justice to ever confer as a group, maybe less writing. I don't know. We could figure out what the institutional factors are. But I'm with you in some ways about the court's shoddy--
Steve: Ooh. Can we stop there?
[laughter]
Will: -the shoddy and political behavior on the shadow docket. But to me that stands in contrast to their relatively impressive for human beings' ability to get over it on the merits docket. And I'm not sure, I don't know, Do you agree with that?
Steve: Relatively, yes. I think the question is that then, just like we don't praise them enough for getting over their priors, and the shadow docket is what normal humans would do.
Will: They are big boys and girls. I don't care that much whether we praise them or not, but it might affect how we think about the symptoms and how we think about the critiques.
Steve: But, Will, there's another way of putting exactly what you just said that I think sounds a little more negative. Which is that it's in the shadow docket, where they don't have to spend months fighting over a rationale, where they don't have to hash out every single paragraph of analysis, where the Justices are more likely, through no bad faith, just through instinct to vote for their policy preferences and not necessarily for the principles that allow them to overcome their priors.
Will: Yeah, no, that sounds right.
Steve: I would say that strikes me as a problem.
Will: Yeah. [chuckles]
Steve: Okay.
Will: One model of the court is, the court is evil or political, whatever.
Steve: [laughs]
Will: Political and conservative, and therefore, evil in the eyes of some. They do what they can get away with in the merits docket. But in the shadow docket, they can get away with so much more because it's harder for us to watch them until Batman, Professor Vladeck swooped in to fight crime in the shadow docket as well.
Steve: You started it.
Will: Touché.
Steve: [laughs]
Will: The other model is more like what you said, which is not that they're necessarily trying to be up to something, but just in this institutional setting, of course it happens. This is the setting where they're not at their best.
Steve: So, I try in the book, and maybe too subtly, although I hope it's there, to all but suggest that I think it started as the former and ended as the latter. That at first it was not willful, that at first it really was reactive, where they get a flurry of applications that they least they haven't seen a generation. Where the incoming deluge of applications from the Solicitor General in 2017 and 2018 is not something that they're used to and where they're just reacting one at a time. The shadow docket fell on them. You can see this a bit in some of the separate opinions sometimes. Like, we didn't have a choice but to resolve these cases. This is why, Will, I think chapters five and six are so important and why they bother you so much because I think it's sometime around the fall of 2020 that you see actions by the court that may not be deliberate, but certainly are really hard to defend as simply reactive, where there seems to be a proactivity to what the court is doing.
Again, I don't ever accuse any of them of bad faith. I really do believe the [unintelligible 00:27:12] quote that I use toward the end of the book. But I do think that there's something to be said for once you've been doing it for three years, saying, "Oh, why don't we just do this here as opposed to there?" Not because we're being malicious, not because we're trying to piss off Vladeck, not because we're trying to, I guess you could say, undermine the republic but in ways that have that effect and in ways that are conscious and that produce results that then have the consequence of making it look like that's what the court is doing.
Will: For people following, chapter five is the COVID Religious Liberty chapter, and chapter six is the Purcell Election chapter. No, it's fine. And as to the COVID chapter, I just say none of us were at our best during the first year of COVID and the Supreme Court was apparently no exception.
Steve: Will, then the question is so what happens to Barrett and Kavanaugh in the COVID cases? Because I think that's an important point. Which is, in the fall of 2021, Barrett and Kavanaugh seem right to hit the brakes on COVID cases, and you get that concurrence in Does v. Mills, which I actually think is all but an admission that they had gone too far in the earlier cases.
Will: I agree. I think Justice Barrett's concurring opinion in Does v. Mills is one of the best Supreme Court opinions of the 21st century.
Steve: [laughs] Wow.
Will: Sorry. This is how I scandalized Dan, but I actually think that's true. I think it's importantly correct, and it does have a feel of, like, waking up to the morning after some really bad night and being like, "What the hell happened and how did I get here? How can we make sure it doesn't happen again?"
Steve: Well, and especially now that Alito is invoking it alongside the Kagan and Sotomayor dissents as an example of the betrayal.
Will: Yes.
Steve: My words, not yours.
Will: With enemies like that. Just to close the loop on the election law thing, do you think the Supreme Court's merits docket election law cases are less partisan than the shadow docket cases?
Steve: Yes, by one step. It's a meaningful step, which is that the Supreme Court's election law cases have largely revolved around intellectual principles that have a remarkable tendency, I think, to favor particular types of claims by particular types of parties but that can be described as a coherent, independent, substantive principle. So, if the court narrows section 2 and overrules or at least tightens Thornburg v. Gingles, there will be a plausible story about why the court is doing that. We could talk about statutory stare decisis again and why 40 years later, maybe they shouldn't be doing that, but at least there's a principle there. Versus having the Alabama redistricting case in February 2022 that has all these effects on the 2022 midterms before the court has done that, at a point when the lower courts are clearly bound to follow and apply Thornburg v. Gingles as they have it.
Will: Okay.
Dan: I guess one question that I had in an overarching way is, maybe the shadow docket lets them intervene in things that they would never be able to intervene in. But how much confidence do you have? It seems to be some and non-zero that for everyday people who are watching what the court does, that the opinions do any work at all? I think that most people just rely on maybe at best, stuff that you say on CNN [Steve laughs] to describe, but [crosstalk] usually they're relying on stuff that's much less sophisticated. Like, there's a news story that says, the five, six Republicans voted this way. And I see why they matter for people like us, but we don't matter for the most part. Maybe we're legal elites, and maybe that influences the court in some very subtle way.
But I take it that you do think that there's maybe the fact that they have to write opinions is important. Maybe it's important because it constrains them and they have to be more principled, but maybe it's also important as justifying what they do to the public. Maybe you could talk about that a little bit?
Steve: Yeah. I think it's a very soft point, Dan, and I think the data is, at best, inconclusive in support of it. Listen, I don't dispute for a second that there are large swaths of the public who look at the result and maybe the vote count and form their judgment about whether what the court did was right or wrong. That's not the folks I'm trying to reach. I do have the sense, I don't know about you guys, I was floored by the public reaction to the SB 8 ruling. Not because it wasn't a huge deal. It was not because it wasn't, at least to my mind, a terrible ruling. I think the first time I ever actually may have yelled at Will was might have been about the SB 8 decision, not because he was actually defending it, but just because I was really mad.
Dan, at least there's actually the Chicago Journalism Review, I think I might have that right did like a media study of public discussion of the shadow docket after the SB 8 ruling. Part of it was like, "Hey, you effectively ended abortion in the nation's second largest state. Why?" Folks actually saw that the rationale was one paragraph about open questions under Ex Parte Young. I don't know that had there been four pages about the standard for a stay or the standard for an injunction, I'm not sure that the criticism would have been much less loud. But I think the most damning part of the indictment was to quote the Adam Serwer headline, "Five Justices did this because they could." The opinions insulate the Justices, at least to some degree against charges that they're just voting on their policy preferences and when there's no opinion.
This was the theme of Justice Barrett's speech at the Ronald Reagan Library last April, which I thought was a very important and meaningful speech. It was just ironic that two days later, she's the decisive vote in a 5-4shadow docket case in which there was no opinion to read. I do believe that the opinions matter not just because we, the legal nerds, parse them and write about them and talk about them, but because even for folks who may not understand them, like seeing them and seeing that there are ideas in them and principles in them, is the reassurance that the court is being a court.
Will: Doesn't this example cut the other way? I think SB 8 ruling also happened while the president's commission on the Supreme Court was undergoing deliberations. I don't think I'm saying anything I'm not allowed to say by saying that it similarly seemed to confuse a lot of people who were on the commission, who previously had one set of priors of what they thought of the shadow docket and then suddenly saw this and had to reorder their priors in various directions and just obviously changed the stakes. But wasn't the case reported the wrong way?
I think you'd agree that until 10 years ago, what the court did in SB 8, not reach out to enjoin a new state law, even if unconstitutional, is totally normal. The thing that was new, the headline was, "Supreme Court fails to accord to abortion rights." The same rights that it has newly decided to accord to other privileged rights such as free exercise. The headline is--
Steve: That the court has newly decided to afford to new expansions of other rights.
Will: Sure, right. But the framing, the Supreme Court did this because they could, as if the Supreme Court was the one intervening on the status quo here, as opposed to and maybe this is a distinction only a lawyer would care about, making an arguably unprincipled failure to intervene in a way, in some sense, quite traditional, but no longer traditional. Nobody reported it that way.
Steve: I think what the problem is that there was a-- I have to go back and read Adam's piece, and I confess I haven't looked at it in a little while. I think there was a visceral sense though, at least among the Supreme Court press corps and the folks who write about the court at least semi-regularly like Adam, that we had just gotten through a period of aggressive intervention, intervention after intervention after intervention, and now they're not going to intervene to protect an existing right. Will, I also think there was a lot of umbrage about the procedural machinations that was SB 8 that was unrelated to the shadow docket piece [crosstalk].
But I will just say that I am on, at least on this one, Team Kagan, that the most galling thing about the SB 8 ruling is that it's literally the same five Justices acting in a way that's inconsistent and inconsistent on both process and substance. Inconsistent in invoking procedural questions, not even clear procedural roadblocks, to avoid intervening, and inconsistent in not protecting an existing right in a context in which they've intervened to expand existing rights. Listen, I happily accept that my critique of the SB 8 ruling is probably to a fair degree, more nuanced than the most prevalent public critique of the SB 8 ruling. I still think both are relevant.
Will: Wait, so just one technical inconsistency point. It seems like the conservative majority consistently has the view that we should on the shadow docket, take into account where we know the law is going, even if that's not the current doctrine. That means that if we know the law is going to broaden this right, we'll go ahead and treat it as if it were expanded. If we know the law is going to narrow this right, we'll go ahead and treat it as narrowed. They consistently have a realist, rather than a formalist view of their own doctrine. Now, that might be bad because the doctrine is moving in bad directions but are they being consistent about that?
Steve: We've talked about this offline. I think that is the single best defense of the court's behavior, and it's rather remarkable that is the defense of the court's behavior. This is where we're going, and none of the process matters at all. I will just say that from a timing perspective, the posture of the SB 8 case is very different from Fulton and Tandon. In Fulton and Tandon, Fulton had already been submitted. The opinions were well on their way to being right when Tandon is decided. In the SB 8 case, Dobbs hadn't even been argued. So, I'm not really sure that in the expedited back and forth between chambers, it would have been clear to the Justices on August 31st that Roe was dead.
Will: You don't think they knew until the conference? You think they hadn't talked about it beforehand?
Steve: I don't think they were sure until argument. At least the way the Chief acted during the argument, I'm not sure he was sure until the argument.
Will: Well, he may not have been sure, but he might be the last one to admit defeat.
Steve: Fair enough. Let's assume that the future direction of substantive law, über alles, is the rationale for all of the court's shadow docket behavior.
Will: We'd say it's like equity. Law gets hung up on technicalities and equity tries to get to the substance.
Steve: Yes, because this court has been so flexible in its approach to equity in other contexts. I would say there are still two enormous problems with that. One is that it backfires, at least sometimes. We've talked already about examples where the merit decision goes the other way, and we should say the SB 8 case is one of them, where eight justices ended up holding that at least in the posture in which the case had reached them at that point, there were proper defendants in that case.
You and I, Will, have also talked about the technical point that the majority order in the SB 8 emergency application misses the lesser relief, like totally ignores the lesser relief that the applicants were asking for, which was to vacate the Fifth Circuit stay, which doesn't require the same kind of showing, as an injunction.
One, they're wrong sometimes, if that's all this is, but two, they are then openly defying the statutory limits on their jurisdiction. I guess that may not matter to a lot of people, but it matters a lot to me, and it ought to matter to them.
Will: And the statute limit of the jurisdiction is the All Writs Acts requirement of things be consistent with the usages and principles of law? Is that--?
Steve: Yes.
Dan: Can I put another topic on the table? Which is one place where the book is maybe a little thinner is the stuff about concrete reforms, which I think towards the very end of the book there's a few pages. But when I think about really meaningful media reforms to shadow docket, I just get really hung up on what would actually work without just ending up moving, shifting a lot of power from the court to lower courts in ways that would maybe make worse, exacerbate some of the problems that we're actually most concerned about. It would shift power to the DC Circuit and the Fifth Circuit in ways that might create even wider, more disparate outcomes. You talk about some things where we could enable more plenary merits review and maybe encourage the right opinions and stuff like that. That all makes a certain amount of sense to me. But in terms of really more substantial changes, I'm really struggling. I don't know if you could talk more about your thoughts about that.
Steve: The change is dependent on what the problem is. Again, I know you know this, Dan, but I'll just say this again. The critique is not of intervention. There are going to be cases where the Supreme Court needs to intervene. The ability of lower courts to mess with things, which I think folks will find either in the current administration or the past one in direct relationship to their political priors, I think, is a problem. If only there was a body that was in a position to actually express concerns about how this is a problem and push lower courts to behave better. This is why, by the way, I actually think US v. Texas is a really important case this term, because it actually has the whole potpourri of the current state of state challenging every federal policy litigation phenomenon. So, Dan, part of why the reform discussion is a little thin is because I actually think the reforms could go in lots of different directions and some of the reforms I think, ought to be targeted at lower courts.
I think we should talk about expanding, bringing back three judge district courts if we're going to keep nationwide relief around as a thing. I know you guys have some views about that. I think the shrinking of the court's merits docket is actually something we ought to talk about more. I mean, here I am, a progressive who wants the court to decide more cases. I think that's a relevant story. But they all circle around the same theme, which is just that in general, I think Congress ought to be more invested in the court's docket, as it was for most of the court's first 200 years. I don't really talk about this in the book because I did most of the research for this afterwards, but like the Chief Justice's year-end report, Burger started it as a State of the Union for the Judiciary, where it was like, "Hey, I'm going to tell Congress." I mean, it was very Burger, "I'm going to give a State of the Union just like the president." But it was a wish list. It was, "Hey, Congress, here's what the courts need, including us." And that's totally fallen by the wayside.
So, even if we can fight about specific reforms, I think the broader points that any investment from Congress would be salutary is really the big takeaway here. Will, I think, as you know, it's one of my big disappointments with the reform commission, which is that I think it got so tripped up on the most visible piece of the reform conversation that it missed any opportunity to say reform in general would be healthy.
Will: Apparently at the Fifth Circuit Judicial Conference last week, Justice Alito was a guest and was asked various questions and gave off-the-cuff remarks as he does. Apparently, there was a question to him about the court's shrinking merits docket, at which he said he found it very puzzling that the court's merits docket was shrinking, and he had no idea why. He was really hoping some academics would study the problem and try to document the causes, which if he was not putting us all on-- [chuckles] Steve's holding up his book, I find remarkable to imagine that Justice Alito does not know, you might think there are nine people in the room who are the most informed about what cases go on the Supreme Court docket and what don't. It'll be odd for them to commission the academics they excoriate to try to tell them what it is they're up to, what it is they're doing.
Are you anti-nationwide injunction? Do you think either the court or congress should either eliminate or restrict them?
Steve: I am not anti them categorically. I think they have become too common. I have this weird middle-of-the-road view that there are contexts in which that relief may very well be appropriate, but that they've become far too prolific.
Will: And that isn't just the APA. So, it isn't just like--
Steve: Indeed, I actually think that there's a unique argument that immigration policy might be one context in which having rules that vary by jurisdiction would create the kinds of chaos that equity is designed to ameliorate.
Will: Isn't part of the reason the Supreme Court doesn't step in because they don't agree on what to say? I mean, of course, Chief Justice Roberts, if you imagine him trying to write a State of the Union on behalf of this court about what the judiciary needs from Congress, I can't imagine what he could reasonably say without getting over his skis.
Steve: I don't dispute that for a second, Will, but if you can't agree on what to say, then don't say anything.
Will: Well, they don’t.
Steve: But yes, they do perceive-- this is the problem, is that they keep speaking without speaking. They tell the Ninth Circuit that the Ninth Circuit clearly erred by failing to follow an order with no opinion. It seems to me like one or the other, not this awkward, intermediate, "We're not really talking, but we're going to be mad at you if you don't listen."
Will: One thing that's missing, and that's missing from this book too, but for totally understandable reasons, is just more working out of what the law of the shadow docket is and should look like. Some of these are conversations you and I have gone back and forth about, like what is the standard for granting an injunction? What is the indisputably clear standard and does it still apply? Where did it go? And how does that work? Or, what's the deal with irreparable injury? Is it the case, as the court sometimes says that the government has always suffered irreparable injury or not? Or is Ex Parte Peru wrong to think that you can use the All Writs Acts for things other than preserving the court's jurisdiction? And on and on and on.
I just feel like there's a whole set of substantive law there that every judge, like in the civil procedure side, of the fed court side, they've come up on. They had some of it in law school. They practiced it since they were litigators, they dealt with it as lower court judges. And they've got priors on it, which helps ground them. Nobody, until they get to the Supreme Court has ever thought about these questions. And then, there's nothing even to read. Almost nothing to read.
Steve: The short answer is yes. But I will just say, you, Will, as much as anyone would know this already, the leading federal courts casebook for generations has, I think, done a terrible job of covering any of this stuff. But that's also about to change. I think that's to your credit, and that's to Jack's credit, and that's to your coauthor's credit. So, yes, I will say, I think, without any controversy, I don't see law professors as the principal audience for my book, but I do think that there are lessons here about how we law professors even approach the court from an academic perspective, especially those of us who are more focused on the process of the court's operations. It shouldn't be the case, as I think it currently is, that the best academic treatment of all of the stuff is in Stern and Gressman. But I think it's indisputably the case that's currently true. There's work for all of us to do, I think, to improve upon that. Frankly, I suspect work that the Justices would find useful.
Dan: One thing we said was we need to reform the court because it's better to have a court that's legitimate rather than one that just is seen as totally partisan. I still think that although explaining why I think that is sometimes a little hard. You say something that agrees with that on the book. You say, basically, our constitutional republic needs a legitimate Supreme Court even when staffed by majority of Justices with whom many of us routinely disagree. The reason you give there is we need the court to stand up against the mob. I wonder if you could just talk more about that. Putting aside the shadow docket stuff, where do you see them as doing the stuff that you think is really important?
Steve: The election of 2020.
Dan: Okay, but not this court today?
Steve: Well, by the time they were done, with the exception of Jackson for Breyer, that was this court. I am profoundly ambivalent about whether the court should have said more. Tom Goldstein wrote these two, I think, quite remarkable op eds for SCOTUSblog basically imploring the court to step in verbally about the election. One before January 6th and one after January 6th. When I have cynical, depressed, progressive law students ask me why any of this matters anymore, the election of 2020 is my first example of how there's still law and of how we need a legitimate court, because the court's non-acquiescence in any of the post-election shenanigans was so important to making sure that those shenanigans didn't succeed. Imagine how different things would have been if the court had even accepted jurisdiction over the bill of complaint in the Texas v. Pennsylvania case, or if the court had granted a stay of any of the more outlandish challenges to the results in Pennsylvania or Georgia.
Dan, I say this in the book, overtly. To me, the moment when we're going to need the court the most is the next election that comes down to one state where there's a dispute over the state, where it's the next Bush v. Gore. Progressives are going to say, "Well, how'd the last one go?" The answer is that the court resolved the controversy on terms that didn't start a civil war. I don't know that I agree with how the court resolved it, but it resolved it. This is why the court's credibility matters because I assume that if that happens again, we would prefer the Supreme Court resolving an election to literal gunfire. That's why I think the stakes here are so significant.
Dan: Yeah. I will say though, using 2020 as the example is a low bar, because really what you're saying is we need a legitimate Supreme Court so that they don't try to steal an election. That's an example of the court not encouraging the mob, but it's not necessarily an example of the court really stopping the mob. It's not like the court's striking down sort of an unconstitutional law.
Steve: That's right. In that moment that was true. But I think the optics of it-- I think a lot about the January 3rd White House meeting, the Oval Office meeting, where you have two camps of conservative lawyers screaming at each other, the DOJ lawyers who are committed to the rule of law, who are committed to the institution who say, "You can't do this," and the folks whispering in Trump's ear that you can. I really do think that the DOJ lawyers in the room that day, that attitude, that mentality, I might have wished them to go even further. I might have wished them to have taken even stronger positions. But that is a stopping point, that is a point of no return where we need people even with whom I disagree on almost everything. That's where we need a court, at the very least, to avoid a mob basically using a future disputed election to seize power.
Will: I like this side of you, Steve.
Steve: Which side? The defending conservative DOJ lawyer side?
Will: No, but the part that has not lost all faith in our institutions. This is good.
Steve: I haven't. Will, this is the weirdest thing about writing this book, is that it is both deeply critical of the court as an institution but written from a place of such profound admiration for the court as an institution and such profound hope for the court as an institution.
Will: Yeah. Obviously, I'm in the last place to be able to criticize other people for their fellow travelers or their fans. But I feel like the book does have a lot of fans who don't have that same residual faith in the institutions, who see this book as a useful stick to beat the court with and they're hoping it doesn't recover. Is that wrong? It's not your fault.
Steve: No, I don't think that's wrong. But I also think that this is where, for example, if there were more of a concerted effort on the part of those who find those attacks problematic, to distinguish the attacks that they find appropriate. [chuckles] Getting painted in the same brush as all of those folks all the time makes me a little less worried about those folks turning around and using the book the way that you are worried that they will.
Will: Blame the victim.
Steve: No, that's not what I said.
Will: I know, I'm sorry. I'm teasing you.
Steve: Will, I think about this a lot. I think this is a problem of social media too, which is that critiques tend to get amplified, not necessarily for their nuance, but for their strength. Those two things are not always related.
Will: Sure.
Steve: I guess the best I can say is, I will go talk to anybody about what the book does and doesn't say, and I will talk to any conservative audience that will have me, I will talk to any progressive audience that will have me, and I will keep talking until they don't let me anymore to try to say that I actually think the institution is worth saving.
Will: Do you say the same thing to both audiences?
Steve: I sure hope so. I don't deliberately not. I think the points of emphasis differ. I think I probably spend less time trying to persuade the progressive audience that the court's behavior is problematic and more time trying to persuade them that all is not lost. I think the points of emphasis are different, but I don't think I'm saying radically different things. I think maybe they're hearing different things, but that's a larger problem.
Will: For sure.
Dan: So, Steve, thanks so much for coming on to talk about the book. The book is, I think, available now at your favorite bookseller, online or in person. I noticed there's also an audiobook version.
Steve: I tried out for it, and they didn't take me.
Dan: Oh, you got fired. Yeah. I was looking at who the reader is. It's apparently someone named Jonathan Todd Ross.
Steve: He's a voice actor.
Dan: Who does some anime voices as well.
Steve: I asked if I could do the audiobook, or at the very least, if Karen could do the audiobook. [crosstalk] The publisher had me submit a demo of me reading my own words, and they came back to me and said, "So, we've got three finalists, and you're not one of them."
Will: You weren't even a finalist for your own book.
Steve: I wasn't even a finalist.
Dan: You were number four. I'm sure you were in the final four.
Steve: Karen always says I have a face for radio, but I guess I don't have even that.
Dan: Well, we encourage all of our listeners to read the book. I think it is really good and as we talked about just very substantive. You will learn a lot. Even if you're someone who has been following the court, you'll learn a lot in terms of history, and you'll actually learn a lot of what they've doing recently. So, Steve, thanks again.
Steve: Thank you so much. It's really a treat to be with you guys, and I really appreciate it. I say this in the book and I say this anytime anyone asks me, but I don't know that Will is happy with how much I've made this into a thing. But this wouldn't be a thing if it weren't for Will, and I at least am grateful for that.
Will: My only grievance was that people were not talking or thinking carefully enough of the shadow docket, and I can say that grievance has definitely been satisfied.
Steve: [laughs]
Dan: Steve, one theme that we've talked about on this show is that Will was originally going to call that article something else. It was Paying Attention to the [crosstalk] and so if that were the case, I don't think your book would have been called--
Steve: No, I would have needed a different title.
Dan: Yeah. You would have had to come up with The Shadow Docket or The Darkness Docket or something. Luckily, it worked out.
Steve: Or Why Orders Matter.
[laughter]
Dan: That would really be lighting up the bestseller list, I'm sure.
Steve: Thank you, guys. This is a treat.
Will: Thank you.
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