1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio 2 00:00:09,320 --> 00:00:13,520 Speaker 1: Late tonight. The US Supreme Court ruled churches in California 3 00:00:13,960 --> 00:00:16,640 Speaker 1: can hold indoor services during the pandemic. 4 00:00:16,920 --> 00:00:20,240 Speaker 2: A major decision by the Supreme Court blocking the Biden 5 00:00:20,239 --> 00:00:24,400 Speaker 2: Administration's temporary ban on eviction of a deeply divided Supreme 6 00:00:24,440 --> 00:00:28,200 Speaker 2: Court is allowing a Texas law that bans most abortions 7 00:00:28,240 --> 00:00:29,560 Speaker 2: to remain in force. 8 00:00:30,200 --> 00:00:35,040 Speaker 1: The unsigned, unexplained decisions often come late at night, but 9 00:00:35,120 --> 00:00:38,199 Speaker 1: in the light of day, their impact can be profound 10 00:00:38,280 --> 00:00:42,040 Speaker 1: for millions of Americans. In recent years, the Supreme Court 11 00:00:42,080 --> 00:00:44,919 Speaker 1: has used its shadow docket more and more to make 12 00:00:44,920 --> 00:00:49,360 Speaker 1: critical decisions with real world effects behind closed doors, on 13 00:00:49,479 --> 00:00:53,320 Speaker 1: everything from abortion and religious rights to election questions and 14 00:00:53,400 --> 00:00:58,760 Speaker 1: immigration policies. Decisions that just appear whenever, and that can't 15 00:00:58,800 --> 00:01:03,200 Speaker 1: be analyzed or fully understood because there's no opinion to read, 16 00:01:03,600 --> 00:01:07,600 Speaker 1: no oral arguments to listen to. Constitutional law Professor Stephen 17 00:01:07,680 --> 00:01:10,679 Speaker 1: Vlannok of the University of Texas Law School has been 18 00:01:10,760 --> 00:01:14,520 Speaker 1: studying this for years, and his new book is appropriately 19 00:01:14,720 --> 00:01:18,959 Speaker 1: entitled The Shadow Docket. How the Supreme Court uses stealth 20 00:01:19,080 --> 00:01:22,679 Speaker 1: rulings to amass power and undermine the Republic, and he 21 00:01:22,760 --> 00:01:25,680 Speaker 1: joins me, Now, for those who may not know, it's 22 00:01:25,680 --> 00:01:28,360 Speaker 1: hard to believe anyone doesn't know who listens to this show, 23 00:01:28,400 --> 00:01:31,080 Speaker 1: But tell us what the shadow docket is? 24 00:01:31,880 --> 00:01:34,600 Speaker 2: Sure, I mean, So the term itself was coined in 25 00:01:34,760 --> 00:01:39,479 Speaker 2: twenty fifteen by Willbosity of Chicago, and you know, Will 26 00:01:39,560 --> 00:01:40,600 Speaker 2: meant it, he joins me. 27 00:01:40,720 --> 00:01:43,360 Speaker 1: Now, for those who may not know, it's hard to 28 00:01:43,400 --> 00:01:45,880 Speaker 1: believe anyone doesn't know who listens to this show, But 29 00:01:46,480 --> 00:01:48,480 Speaker 1: tell us what the shadow docket is? 30 00:01:49,280 --> 00:01:52,000 Speaker 2: Sure, I mean, So the term itself was coined in 31 00:01:52,160 --> 00:01:56,920 Speaker 2: twenty fifteen by Willbosity of Chicago, And you know, Will 32 00:01:56,960 --> 00:01:59,800 Speaker 2: meant it really as a catch all as basically this 33 00:02:00,040 --> 00:02:04,880 Speaker 2: evocative shorthand for everything that the Supreme Court does other 34 00:02:05,000 --> 00:02:08,840 Speaker 2: than the big meriage decisions that come down each May 35 00:02:08,880 --> 00:02:11,760 Speaker 2: and June. And so Will's basic insight was that there 36 00:02:11,800 --> 00:02:16,600 Speaker 2: are you know, literally thousands of unsigned, unexplained orders that's 37 00:02:16,600 --> 00:02:20,000 Speaker 2: the Supreme Court hands down every year that get barely 38 00:02:20,040 --> 00:02:23,799 Speaker 2: a sort of a minuscule percentage of the attention of 39 00:02:23,840 --> 00:02:28,000 Speaker 2: the sixty ish merriage rules the Court hands down, even 40 00:02:28,000 --> 00:02:30,359 Speaker 2: though you know, for a fair number of those unsigned orders, 41 00:02:30,360 --> 00:02:34,240 Speaker 2: they actually have pretty significant impacts, both practically and legally. 42 00:02:34,720 --> 00:02:35,680 Speaker 3: So you know, the. 43 00:02:35,639 --> 00:02:37,560 Speaker 2: Idea behind the term was just to say, hey, we 44 00:02:37,560 --> 00:02:40,280 Speaker 2: should start paying more attentions than this slice of the 45 00:02:40,280 --> 00:02:43,200 Speaker 2: Supreme Court's work, and we should you know, start by 46 00:02:43,400 --> 00:02:45,880 Speaker 2: calling it something. And I guess that's where it all started. 47 00:02:46,040 --> 00:02:48,920 Speaker 1: You right, that The bottom line is that most of 48 00:02:48,919 --> 00:02:52,560 Speaker 1: what the Court does is behind the scenes, shrouded in obscurity, 49 00:02:52,720 --> 00:02:55,880 Speaker 1: driven by norms far more than rules, and informed by 50 00:02:55,880 --> 00:03:00,160 Speaker 1: the specter of deeply strategic behavior from all sides to 51 00:03:00,240 --> 00:03:03,760 Speaker 1: which the public is generally not privy. Tell us what 52 00:03:03,800 --> 00:03:04,720 Speaker 1: you mean by that. 53 00:03:05,200 --> 00:03:06,680 Speaker 2: So one of the things that I try to do 54 00:03:06,720 --> 00:03:09,720 Speaker 2: in the book for folks who may not be similiar 55 00:03:09,760 --> 00:03:12,040 Speaker 2: with the history of the court is to put into 56 00:03:12,240 --> 00:03:16,600 Speaker 2: context how the Supreme Court of today came to have 57 00:03:16,880 --> 00:03:20,880 Speaker 2: just so much control over its docket, over the cases 58 00:03:20,919 --> 00:03:25,120 Speaker 2: it hears, over when it chooses to intervene in cases. 59 00:03:25,320 --> 00:03:27,440 Speaker 2: And so, you know, the idea June was to show 60 00:03:27,520 --> 00:03:31,040 Speaker 2: folks how really started in the early twentieth century with 61 00:03:31,200 --> 00:03:34,400 Speaker 2: the rise of what we call sircirari, the rise of 62 00:03:35,040 --> 00:03:38,880 Speaker 2: the Supreme Court's discretion over its docket, the rise of 63 00:03:38,920 --> 00:03:42,040 Speaker 2: the justice ability to pick and choose not just which 64 00:03:42,160 --> 00:03:45,000 Speaker 2: cases they're going to take up, but which issues they are 65 00:03:44,920 --> 00:03:47,760 Speaker 2: going to resolve within those cases. That that was really 66 00:03:47,840 --> 00:03:51,760 Speaker 2: a font for consolidating power, that the Supreme Court, with 67 00:03:51,880 --> 00:03:55,760 Speaker 2: the rise of Scirari, claim more and more authority both 68 00:03:55,920 --> 00:03:59,080 Speaker 2: to decide and to not decide June in ways that 69 00:03:59,200 --> 00:04:02,600 Speaker 2: are complete invisible to us. So you know, when the 70 00:04:02,720 --> 00:04:05,320 Speaker 2: justices decide whether to take up a case or not, 71 00:04:05,760 --> 00:04:09,240 Speaker 2: all that the public knows is what the briefs say 72 00:04:09,560 --> 00:04:12,080 Speaker 2: and when the justices are going to talk about the case, 73 00:04:12,120 --> 00:04:16,440 Speaker 2: But nothing about the justice deliberations, nothing about their vote 74 00:04:16,680 --> 00:04:19,560 Speaker 2: is ever made public except the bottom line whether the 75 00:04:19,560 --> 00:04:22,080 Speaker 2: case is taken up or not taken up. And you know, 76 00:04:22,240 --> 00:04:26,920 Speaker 2: when you think about the implications of grants or denial, 77 00:04:27,000 --> 00:04:30,000 Speaker 2: the Serciari and the book talks about the same sex's 78 00:04:30,000 --> 00:04:32,640 Speaker 2: marriage cases from twenty fourteen twenty fifteen. It's an example 79 00:04:32,680 --> 00:04:35,520 Speaker 2: of this. It's actually pretty remarkable to think about how 80 00:04:35,560 --> 00:04:38,400 Speaker 2: little we know about why the justices are doing what 81 00:04:38,440 --> 00:04:41,039 Speaker 2: they're doing, and even when we do know, like even 82 00:04:41,080 --> 00:04:43,440 Speaker 2: when we get to the merits docket and the court, 83 00:04:43,560 --> 00:04:46,200 Speaker 2: you know, has an additional round of briefing and oral 84 00:04:46,279 --> 00:04:49,320 Speaker 2: argument and a written opinion. Even then, we still don't 85 00:04:49,360 --> 00:04:52,200 Speaker 2: know necessarily as much as we might like to. And that's, 86 00:04:52,240 --> 00:04:54,800 Speaker 2: you know, so much more than we know about the 87 00:04:54,920 --> 00:04:57,480 Speaker 2: thousands and thousands of dispositions on the shadow docket. 88 00:04:57,920 --> 00:05:01,920 Speaker 1: So you give a statistic that's quite stunning. Only one 89 00:05:01,960 --> 00:05:04,919 Speaker 1: percent of the Court's decisions are from the merits docket. 90 00:05:05,040 --> 00:05:08,160 Speaker 1: So almost ninety nine percent come from the shadow docket. 91 00:05:08,480 --> 00:05:10,360 Speaker 2: That's right. And you know what's crazy about that is 92 00:05:10,400 --> 00:05:13,000 Speaker 2: it's even higher if you consider that even the one 93 00:05:13,040 --> 00:05:16,039 Speaker 2: percent of decisions on the merits docket only got to 94 00:05:16,080 --> 00:05:19,680 Speaker 2: the merit docket because of an unsigned, unexplained order from 95 00:05:19,720 --> 00:05:22,279 Speaker 2: the justices agreement takes the case up in the first place. 96 00:05:22,400 --> 00:05:24,280 Speaker 2: And so you know, I wrote the book at least 97 00:05:24,279 --> 00:05:26,279 Speaker 2: in part. I mean, there's the second part about what's 98 00:05:26,279 --> 00:05:28,000 Speaker 2: been happening lately. But I wrote the book at least 99 00:05:28,000 --> 00:05:31,320 Speaker 2: in part to really help folks understand in context that, 100 00:05:31,440 --> 00:05:33,640 Speaker 2: you know, when the Supreme Court has a term like 101 00:05:33,680 --> 00:05:35,599 Speaker 2: its most recent one, where at the end of the 102 00:05:35,680 --> 00:05:38,159 Speaker 2: term you see all these claims about how you know, 103 00:05:38,279 --> 00:05:41,080 Speaker 2: the justices didn't necessarily vote the way you might have expected, 104 00:05:41,240 --> 00:05:44,200 Speaker 2: and you know, claims about how often the justices were unanimous, 105 00:05:44,240 --> 00:05:46,920 Speaker 2: and claims about which justice is voted together, you know, 106 00:05:47,040 --> 00:05:49,000 Speaker 2: all those claims need to be taken with a pretty 107 00:05:49,040 --> 00:05:52,560 Speaker 2: healthy dose of salt, because the reality is that these 108 00:05:52,600 --> 00:05:56,040 Speaker 2: are cases the justices have chosen. And so the notion 109 00:05:56,160 --> 00:05:58,800 Speaker 2: that you know, this is some kind of random sample 110 00:05:58,839 --> 00:06:01,160 Speaker 2: that tells us a lot of about where the court is, 111 00:06:01,640 --> 00:06:04,360 Speaker 2: I think it's belied by that pretty important but often 112 00:06:04,400 --> 00:06:05,400 Speaker 2: elusive insight. 113 00:06:05,880 --> 00:06:09,920 Speaker 1: How often is the shadow docket a harbinger of what's 114 00:06:10,000 --> 00:06:13,560 Speaker 1: to come on the merits docket? And how often do 115 00:06:13,760 --> 00:06:20,080 Speaker 1: those emergency orders actually end up being the final decision 116 00:06:20,120 --> 00:06:20,640 Speaker 1: in the case. 117 00:06:21,600 --> 00:06:23,360 Speaker 2: Sure, I mean, so, you know, we've been talking mostly 118 00:06:23,400 --> 00:06:26,960 Speaker 2: so far about the dominant by volume piece of the 119 00:06:26,960 --> 00:06:29,800 Speaker 2: shadow docket, which is grants or denials of sercirari. So 120 00:06:30,000 --> 00:06:32,560 Speaker 2: there's another piece of the shadow docket, which is grants 121 00:06:32,640 --> 00:06:35,680 Speaker 2: or denials of emergency relief. This is when while a 122 00:06:35,760 --> 00:06:38,039 Speaker 2: case is working his way through the lower courts, a 123 00:06:38,120 --> 00:06:41,280 Speaker 2: party goes to the Supreme Court and says, hey, you know, 124 00:06:41,320 --> 00:06:44,840 Speaker 2: we would like you to change the status quo right now, 125 00:06:44,880 --> 00:06:48,080 Speaker 2: even before the case comes back to you. And you know, Jude, 126 00:06:48,080 --> 00:06:50,640 Speaker 2: and what's remarkable about emergency relief is that there's been 127 00:06:50,680 --> 00:06:56,000 Speaker 2: a completely revolutionary shift in when and how the justices 128 00:06:56,279 --> 00:06:58,560 Speaker 2: have been granted an emergency relief in the last six 129 00:06:58,640 --> 00:07:01,760 Speaker 2: seven years. You know, Hill, about ten years ago, you 130 00:07:01,920 --> 00:07:05,360 Speaker 2: only tended to see the full court granting or denying 131 00:07:05,400 --> 00:07:08,840 Speaker 2: emergency release in capital cases where there was like a 132 00:07:08,880 --> 00:07:11,560 Speaker 2: prisoner who was trying to have his claims heard before 133 00:07:11,600 --> 00:07:14,120 Speaker 2: he was executed, or a state was trying to have 134 00:07:14,760 --> 00:07:18,200 Speaker 2: a stay imposed by a lower court unfrozen by the justices. 135 00:07:18,560 --> 00:07:20,240 Speaker 2: What we see in the last six seven years, June 136 00:07:20,320 --> 00:07:23,480 Speaker 2: is now almost every major policy dispute you know, gets 137 00:07:23,520 --> 00:07:26,600 Speaker 2: to the Supreme Court first as an emergency application, where 138 00:07:27,000 --> 00:07:30,200 Speaker 2: either the party challenge and the policy wants the policy 139 00:07:30,280 --> 00:07:34,680 Speaker 2: block pending Supreme Court review, or the government responsible for 140 00:07:34,720 --> 00:07:37,800 Speaker 2: the policy wants it unblocked. And you know what's I 141 00:07:37,840 --> 00:07:41,480 Speaker 2: think so remarkable about that shift is first it's happened 142 00:07:41,520 --> 00:07:44,880 Speaker 2: completely in the dark, without any you know, public recognition 143 00:07:44,960 --> 00:07:47,160 Speaker 2: or acknowledgment by the justices that there's even been a shit. 144 00:07:47,360 --> 00:07:50,840 Speaker 2: But second, all the while, the Court has continued its 145 00:07:51,200 --> 00:07:54,640 Speaker 2: norm of not explaining itself, so that you have orders 146 00:07:54,960 --> 00:07:58,680 Speaker 2: that are producing massive effects on the ground, allowing President 147 00:07:58,720 --> 00:08:02,760 Speaker 2: Trump to build his border wall, blocking President Biden's vaccination 148 00:08:02,880 --> 00:08:06,560 Speaker 2: mandates for large employers, to allow in Texas's controversial six 149 00:08:06,600 --> 00:08:09,600 Speaker 2: weeks abortion band to go into effect, allowing Alabama to 150 00:08:09,720 --> 00:08:13,040 Speaker 2: use on lawful congressional districts in last year's midterms. And 151 00:08:13,200 --> 00:08:16,160 Speaker 2: these orders have no rationale. And so Jane, this is 152 00:08:16,200 --> 00:08:18,040 Speaker 2: I think where your question's going. You know, it would 153 00:08:18,080 --> 00:08:20,880 Speaker 2: be one thing if you know the ruling of the 154 00:08:20,880 --> 00:08:23,320 Speaker 2: emergency stage, if all the court was doing was saying, listen, 155 00:08:23,560 --> 00:08:27,000 Speaker 2: we're eventually going to rule for this party over that party, 156 00:08:27,040 --> 00:08:28,360 Speaker 2: so we might as well just do it now and 157 00:08:28,400 --> 00:08:31,000 Speaker 2: get it out of the way. But that's absolutely not 158 00:08:31,160 --> 00:08:33,440 Speaker 2: what's happening. I mean, we've seen a number of cases 159 00:08:33,520 --> 00:08:37,199 Speaker 2: this term where how the court ruled at the emergency 160 00:08:37,240 --> 00:08:40,720 Speaker 2: application stage ended up not being predictive of what the 161 00:08:40,760 --> 00:08:42,959 Speaker 2: court did on the merits in the Alabama redistrict. In 162 00:08:43,040 --> 00:08:46,560 Speaker 2: case last year, you know, in an unsigned, unexplained order 163 00:08:46,600 --> 00:08:50,080 Speaker 2: of five four, court let Alabama use maps that lower 164 00:08:50,120 --> 00:08:53,040 Speaker 2: courts said we're unlawful. This year, a five four majority 165 00:08:53,040 --> 00:08:54,720 Speaker 2: of said, oh wait, the lower courts were right, they 166 00:08:54,760 --> 00:08:59,360 Speaker 2: are unlawful. Same thing with President Biden's immigration enforcement priority. 167 00:08:59,520 --> 00:09:03,040 Speaker 2: You know, last year the Court refused to freeze a 168 00:09:03,080 --> 00:09:06,840 Speaker 2: lower court injunction against those priorities. This year the Court 169 00:09:06,880 --> 00:09:09,800 Speaker 2: reversed that injunction. So part of the problem with the 170 00:09:09,840 --> 00:09:13,120 Speaker 2: book document is not just the explosion and when and 171 00:09:13,240 --> 00:09:17,400 Speaker 2: how the justices are using you know, unsigned unexplained orders 172 00:09:17,440 --> 00:09:21,600 Speaker 2: granting emergency relief in ways it has profound impacts on 173 00:09:21,640 --> 00:09:24,280 Speaker 2: the ground, but also that it turns out those orders 174 00:09:24,280 --> 00:09:26,679 Speaker 2: are not predictive, and so the fact that the justices 175 00:09:26,679 --> 00:09:29,840 Speaker 2: are not explaining themselves, you know, at the emergency application 176 00:09:29,960 --> 00:09:33,120 Speaker 2: stage is all the more problematic when they seem to 177 00:09:33,160 --> 00:09:35,560 Speaker 2: be changed in their minds at the merriage stage. 178 00:09:36,360 --> 00:09:39,240 Speaker 1: You know, the increase in the last six to seven 179 00:09:39,320 --> 00:09:42,719 Speaker 1: years is under the Roberts Court. Do you think that 180 00:09:42,760 --> 00:09:47,680 Speaker 1: the justices are deliberately doing this, thinking this through or 181 00:09:47,840 --> 00:09:51,120 Speaker 1: they would say, well, these emergency things come up and 182 00:09:51,480 --> 00:09:54,520 Speaker 1: we don't take that many cases anymore, which is another problem. 183 00:09:54,880 --> 00:09:56,760 Speaker 1: What do you think their explanation would be. 184 00:09:57,040 --> 00:09:59,160 Speaker 2: I mean, you know, Justice Alito at least has tried 185 00:09:59,200 --> 00:10:02,960 Speaker 2: to proffer public explanation, and he's been very in line 186 00:10:02,960 --> 00:10:05,640 Speaker 2: with the you know, don't blame us, we don't make 187 00:10:05,679 --> 00:10:08,200 Speaker 2: these applications up, people come to us aster a relief, 188 00:10:08,240 --> 00:10:12,040 Speaker 2: and so you know, from Justice Alito's perspective, it's very reactive, 189 00:10:12,160 --> 00:10:14,440 Speaker 2: where all the justice are doing is just reacting one 190 00:10:14,440 --> 00:10:17,160 Speaker 2: at a time. And you know, Dune, that explanation, I 191 00:10:17,200 --> 00:10:20,319 Speaker 2: think would have made sense to a point, right, there 192 00:10:20,360 --> 00:10:24,120 Speaker 2: was a real flurry of applications from the Trump administration 193 00:10:24,360 --> 00:10:27,720 Speaker 2: in twenty seventeen and twenty eighteen where you know, maybe 194 00:10:27,720 --> 00:10:29,920 Speaker 2: you could say, yeah, the Justice just never really sat 195 00:10:30,000 --> 00:10:32,320 Speaker 2: down and thought about it. The problem is the book 196 00:10:32,400 --> 00:10:35,120 Speaker 2: documents is that by the time you get to all 197 00:10:35,160 --> 00:10:38,839 Speaker 2: of the COVID related cases in the fall of twenty 198 00:10:38,920 --> 00:10:41,760 Speaker 2: twenty and the winter twenty twenty one, you have a 199 00:10:41,840 --> 00:10:45,240 Speaker 2: court that is at this point acting willfully in the 200 00:10:45,280 --> 00:10:49,640 Speaker 2: sense that the justices are taking applications for emergency relief 201 00:10:49,800 --> 00:10:53,680 Speaker 2: and using those to resolve issues that were pending before 202 00:10:53,760 --> 00:10:56,280 Speaker 2: them in other cases on their merits docket. And so 203 00:10:56,320 --> 00:10:58,280 Speaker 2: it's really hard by the time you get to that 204 00:10:58,440 --> 00:11:01,600 Speaker 2: point to say this was all just the justices reacting, 205 00:11:02,120 --> 00:11:06,479 Speaker 2: as opposed to the justices picking you know, emergency applications 206 00:11:06,679 --> 00:11:09,520 Speaker 2: as the place to make these rulings as the place 207 00:11:09,520 --> 00:11:13,040 Speaker 2: to have this impact versus the merriage docket. That's part 208 00:11:13,080 --> 00:11:14,920 Speaker 2: of why, I mean, the book really does try to 209 00:11:14,960 --> 00:11:18,600 Speaker 2: proceed chronologically through the last six years, because I think 210 00:11:18,920 --> 00:11:22,040 Speaker 2: if you see how the pattern builds, you know, I 211 00:11:22,040 --> 00:11:26,440 Speaker 2: think it really does become clear why even the more 212 00:11:26,480 --> 00:11:30,000 Speaker 2: benign explanations that might have excused some of the Court's 213 00:11:30,000 --> 00:11:33,120 Speaker 2: conducts in twenty seventeen, twenty eighteen, twenty nineteen start to 214 00:11:33,160 --> 00:11:34,959 Speaker 2: fall apart when you get to late twenty twenty and 215 00:11:35,000 --> 00:11:35,959 Speaker 2: early twenty twenty one. 216 00:11:36,400 --> 00:11:39,719 Speaker 1: So, I like the subtitle of chapter four is how 217 00:11:39,760 --> 00:11:43,520 Speaker 1: the Trump administration blew up the shadow docket. So in 218 00:11:43,600 --> 00:11:47,120 Speaker 1: just four years, the Trump Justice Department asked the Court 219 00:11:47,160 --> 00:11:52,040 Speaker 1: for emergency relief forty one times. That strategy worked for 220 00:11:52,120 --> 00:11:54,800 Speaker 1: the Trump administration, didn't it It did? 221 00:11:54,840 --> 00:11:56,880 Speaker 2: I mean, and we should put that stats in context. 222 00:11:56,880 --> 00:11:59,360 Speaker 2: I mean, so forty one times in four years compared 223 00:11:59,360 --> 00:12:02,240 Speaker 2: to the Bush bomb administrations, which you know, June two, 224 00:12:02,400 --> 00:12:06,360 Speaker 2: very different to term presidencies that across sixteen years had 225 00:12:06,360 --> 00:12:08,839 Speaker 2: only gone to the Court eight times. And so it's 226 00:12:08,840 --> 00:12:11,320 Speaker 2: really it's like a twenty fold increase in how often 227 00:12:11,360 --> 00:12:13,160 Speaker 2: the federal government was going to the Supreme Court for 228 00:12:13,160 --> 00:12:15,360 Speaker 2: them mergency release. And as you say, the Court was 229 00:12:15,480 --> 00:12:19,800 Speaker 2: largely acquiescent. And you know, part of what's frustrating about 230 00:12:19,800 --> 00:12:24,480 Speaker 2: this entire topic is because the justices are never explaining themselves, 231 00:12:24,559 --> 00:12:26,600 Speaker 2: were really left to try to sort of put their 232 00:12:26,600 --> 00:12:30,160 Speaker 2: best arguments, you know, into their mouths and speculate and so, 233 00:12:30,600 --> 00:12:34,720 Speaker 2: you know, one common defense of the Court's aggressive interventions 234 00:12:34,800 --> 00:12:37,880 Speaker 2: during the Trump administration was that lower courts had sort 235 00:12:37,880 --> 00:12:41,520 Speaker 2: of run amok with nationwide injunctions and that the Court 236 00:12:41,559 --> 00:12:45,000 Speaker 2: was stepping in to basically mitigate the effects of nationwide 237 00:12:45,040 --> 00:12:48,600 Speaker 2: injunctions to which the justices were opposed, you know, respecting 238 00:12:48,720 --> 00:12:51,600 Speaker 2: the deference they thought the president was entitled to when 239 00:12:51,640 --> 00:12:55,080 Speaker 2: it comes to say, immigration policy. But the problem with 240 00:12:55,120 --> 00:12:57,000 Speaker 2: that argument is if you look fast forward to the 241 00:12:57,000 --> 00:13:00,880 Speaker 2: Biden administration, it doesn't hold up because they administration has 242 00:13:00,920 --> 00:13:05,559 Speaker 2: been subject to a similar flood of nationwide injunctions, including 243 00:13:05,600 --> 00:13:08,760 Speaker 2: in immigration cases. The Biden administration has gone to the 244 00:13:08,800 --> 00:13:13,480 Speaker 2: court multiple times in immigration cases for the same emergency 245 00:13:13,520 --> 00:13:17,200 Speaker 2: relief that the Trump administration got. The Court has denied 246 00:13:17,360 --> 00:13:20,320 Speaker 2: emergency relief in those cases, and yet then the Biden 247 00:13:20,320 --> 00:13:23,439 Speaker 2: administration wins those cases on the merits. So, you know, June, 248 00:13:23,480 --> 00:13:27,560 Speaker 2: it's really i think it complicates the entire story that 249 00:13:27,679 --> 00:13:31,400 Speaker 2: there's sort of no spoken, no written defense by the 250 00:13:31,480 --> 00:13:34,080 Speaker 2: justices of the behavior. But one of the things I 251 00:13:34,200 --> 00:13:36,960 Speaker 2: really try to do in the book is present as 252 00:13:37,160 --> 00:13:40,920 Speaker 2: much evidence as possible and as much data as possible, 253 00:13:41,240 --> 00:13:44,440 Speaker 2: basically to show that like what would otherwise appear to 254 00:13:44,480 --> 00:13:50,520 Speaker 2: be plausible benign explanations for the justices behavior. Just don't 255 00:13:50,559 --> 00:13:53,959 Speaker 2: describe the entire data set, and don't hold up when 256 00:13:54,000 --> 00:13:57,640 Speaker 2: you scale out from any one specific subset of cases. 257 00:13:57,920 --> 00:14:01,760 Speaker 1: You mentioned the COVID case is the KATODOCTA cases during COVID, 258 00:14:02,080 --> 00:14:04,160 Speaker 1: and you have a whole chapter devoted to this. But 259 00:14:04,559 --> 00:14:07,280 Speaker 1: tell us how you think the Court used the shadow 260 00:14:07,360 --> 00:14:09,960 Speaker 1: DOCA to expand religious liberty rights. 261 00:14:10,640 --> 00:14:12,320 Speaker 2: Sure, I mean, so you know, I think folks will 262 00:14:12,320 --> 00:14:16,720 Speaker 2: remember that, starting especially with Justice Barrett's confirmation in late 263 00:14:16,760 --> 00:14:20,640 Speaker 2: October twenty twenty, there was a really sharp increase in 264 00:14:20,720 --> 00:14:24,960 Speaker 2: the Court's intervention to block COVID mitigation measures, especially in 265 00:14:25,000 --> 00:14:28,000 Speaker 2: Blue states on religious liberty grounds, starting the night before 266 00:14:28,040 --> 00:14:30,160 Speaker 2: Thanks Given. And this was a shift. I mean, there 267 00:14:30,200 --> 00:14:32,440 Speaker 2: had been June, as you probably remember, a couple of 268 00:14:32,520 --> 00:14:35,280 Speaker 2: cases in the summer of twenty twenty where the Court 269 00:14:35,360 --> 00:14:39,240 Speaker 2: had refused to grant emergency relief to block California and 270 00:14:39,280 --> 00:14:42,880 Speaker 2: Nevada restrictions over four decents, where to Justice Roberts had 271 00:14:42,960 --> 00:14:46,640 Speaker 2: joined the four Democratic appointees to deny relief. You know, 272 00:14:46,760 --> 00:14:49,200 Speaker 2: now Roberts is not the fifth vote, he's the fourth. 273 00:14:49,480 --> 00:14:52,120 Speaker 2: And so almost overnight after Justice Barrett joins the court, 274 00:14:52,160 --> 00:14:57,359 Speaker 2: we start seeing really aggressive orders blocking New York, California, 275 00:14:57,960 --> 00:15:02,480 Speaker 2: New Jersey, Colorado, COVID restrictions on religious liberty grounds. And 276 00:15:02,480 --> 00:15:05,880 Speaker 2: this all culminates with a decision in April twenty twenty 277 00:15:05,920 --> 00:15:09,320 Speaker 2: one called Tandon versus Newsom. This time around, the court 278 00:15:09,320 --> 00:15:12,320 Speaker 2: actually wrote something, so there was a majority Pitton in 279 00:15:12,320 --> 00:15:14,760 Speaker 2: tand in. And one of the things the Court does 280 00:15:14,920 --> 00:15:18,480 Speaker 2: in Tandon is it embraces what scholars call the most 281 00:15:18,600 --> 00:15:22,280 Speaker 2: favored nation theory of the free exercise clause, the idea 282 00:15:22,400 --> 00:15:27,320 Speaker 2: that when you have any kind of law of general applicability, 283 00:15:27,440 --> 00:15:30,640 Speaker 2: a zone in regulation accur to you, I mean anything 284 00:15:30,680 --> 00:15:34,080 Speaker 2: that applies to all. If the law makes any exceptions 285 00:15:34,320 --> 00:15:37,720 Speaker 2: for secular businesses, it must also make an exception for 286 00:15:37,800 --> 00:15:41,200 Speaker 2: religious ones. And the Court used that theory, which it 287 00:15:41,240 --> 00:15:47,160 Speaker 2: had never embraced before, to block California's restrictions on how 288 00:15:47,200 --> 00:15:49,560 Speaker 2: many different people you could have in a private home. 289 00:15:49,720 --> 00:15:52,160 Speaker 2: So California had said, you know, you can only have 290 00:15:52,360 --> 00:15:55,520 Speaker 2: people from three different households in any private home at 291 00:15:55,520 --> 00:15:58,360 Speaker 2: any one time as one of its COVID restrictions. And 292 00:15:58,400 --> 00:16:01,120 Speaker 2: the Court says, but because there are secular exceptions, so 293 00:16:01,200 --> 00:16:04,200 Speaker 2: that there must be a religious exception, and therefore blocked 294 00:16:04,200 --> 00:16:07,640 Speaker 2: the California law June. That's remarkable in two respects. First, 295 00:16:07,920 --> 00:16:11,760 Speaker 2: everyone agrees, even the folks who liked that decision agreed 296 00:16:11,880 --> 00:16:14,840 Speaker 2: that that's a new principle of free exercise jurisprudence, that 297 00:16:14,880 --> 00:16:17,600 Speaker 2: the Court made law in tandon in a way that 298 00:16:17,640 --> 00:16:20,640 Speaker 2: at least generally is not supposed to on the shadow docket. 299 00:16:20,760 --> 00:16:25,800 Speaker 2: But second, the specific relief that the applicants had sought 300 00:16:25,840 --> 00:16:29,960 Speaker 2: in tent was an injunction pendent appeal, the most extreme 301 00:16:30,080 --> 00:16:32,720 Speaker 2: form of emergency relief, where what they're supposed to show 302 00:16:32,840 --> 00:16:37,640 Speaker 2: is that their right to relief was quote indisputably clear unquote. 303 00:16:37,800 --> 00:16:39,720 Speaker 2: And here we have the Supreme Court staying it was 304 00:16:39,800 --> 00:16:44,320 Speaker 2: indisputably clear that the principle that we had never previously 305 00:16:44,360 --> 00:16:48,320 Speaker 2: adopted was violated by the state of California. That's really 306 00:16:48,360 --> 00:16:51,000 Speaker 2: how far things have gone on the shadow docket by 307 00:16:51,040 --> 00:16:52,160 Speaker 2: April twenty twenty one. 308 00:16:52,440 --> 00:16:56,880 Speaker 1: Obviously this has not passed the attention of the Supreme 309 00:16:56,920 --> 00:17:01,760 Speaker 1: Court justices. Has Justice Elena Kaye been the loudest voice 310 00:17:01,760 --> 00:17:03,840 Speaker 1: in calling out the shadow docket? 311 00:17:04,119 --> 00:17:06,920 Speaker 2: She has, I mean, so Justice Kagan has been very 312 00:17:06,960 --> 00:17:11,280 Speaker 2: critical of the conservative justice behavior on the shadow docket, 313 00:17:11,600 --> 00:17:15,080 Speaker 2: starting with her descent in September twenty twenty one in 314 00:17:15,119 --> 00:17:18,000 Speaker 2: the Texas abortion case, but carry him through to the 315 00:17:18,040 --> 00:17:21,560 Speaker 2: Alabama redistricting decisions every twenty twenty two and also a 316 00:17:21,600 --> 00:17:24,879 Speaker 2: Clean Water Act decision in April twenty twenty two. But 317 00:17:25,040 --> 00:17:27,760 Speaker 2: you know, June. Was remarkable about that last ruling in 318 00:17:27,800 --> 00:17:31,360 Speaker 2: April twenty twenty two is that this time around Justice 319 00:17:31,400 --> 00:17:35,000 Speaker 2: Kagan's opinion was actually joined not just by the two 320 00:17:35,040 --> 00:17:38,360 Speaker 2: other Democratic appointees, but by Justice Roberts. And I think 321 00:17:38,400 --> 00:17:40,600 Speaker 2: this is one of to me, the best pieces of 322 00:17:40,640 --> 00:17:44,240 Speaker 2: evidence this is not just a you know, liberal versus 323 00:17:44,280 --> 00:17:49,440 Speaker 2: conservative then, where Justice Roberts has regularly joined the first 324 00:17:49,560 --> 00:17:53,840 Speaker 2: four and now three Democratic appointees in disagreeing with the 325 00:17:53,880 --> 00:17:57,800 Speaker 2: other Conservatives on the shadow docket. June not because he's 326 00:17:57,960 --> 00:18:00,560 Speaker 2: unsympathetic to the marriage, not because he doesn't want to 327 00:18:00,600 --> 00:18:03,720 Speaker 2: reach the same bottom line, but because he objects to 328 00:18:03,920 --> 00:18:08,560 Speaker 2: using the procedural device, sort of the technical procedure of 329 00:18:08,600 --> 00:18:10,840 Speaker 2: the shadow docket to do it. And you know, I 330 00:18:10,880 --> 00:18:12,439 Speaker 2: think what that really drives home is that this is 331 00:18:12,480 --> 00:18:16,200 Speaker 2: not ideological but rather institutional, which is why I think 332 00:18:16,200 --> 00:18:18,680 Speaker 2: it's not just Justice Kagan's a Chief Justice Roberts, who 333 00:18:18,680 --> 00:18:21,280 Speaker 2: have been in the middle of critiquing this behavior by 334 00:18:21,359 --> 00:18:22,600 Speaker 2: the other Conservatives. 335 00:18:22,880 --> 00:18:26,600 Speaker 1: You write that when it comes to the shadow docket, 336 00:18:27,040 --> 00:18:29,679 Speaker 1: his the Chief's votes have been the canary and the 337 00:18:29,680 --> 00:18:33,520 Speaker 1: coal mine. But if anyone can stop this, isn't it 338 00:18:33,520 --> 00:18:34,000 Speaker 1: the Chief. 339 00:18:34,600 --> 00:18:37,280 Speaker 2: I mean, yes, to know, it's just one vote, even 340 00:18:37,320 --> 00:18:39,680 Speaker 2: though it's you know, in some where ways the first 341 00:18:39,720 --> 00:18:42,800 Speaker 2: vote of unequals. So I mean, as we saw June 342 00:18:42,920 --> 00:18:45,880 Speaker 2: a lot in late twenty twenty and early twenty twenty one, 343 00:18:46,400 --> 00:18:48,720 Speaker 2: when there are five votes on the other side, all 344 00:18:48,720 --> 00:18:51,960 Speaker 2: that she really can do is defend that said. I mean, 345 00:18:52,000 --> 00:18:56,080 Speaker 2: I do think that we have seen subtle but significant 346 00:18:56,160 --> 00:18:59,720 Speaker 2: shifts in how the Court has been approaching emergency applications 347 00:19:00,080 --> 00:19:02,840 Speaker 2: in the last you know, twelve to eighteen months. We've 348 00:19:02,840 --> 00:19:05,960 Speaker 2: seen fewer of the types of ruling about which the 349 00:19:05,960 --> 00:19:09,119 Speaker 2: book is most critical, where you have these, you know, 350 00:19:09,200 --> 00:19:14,719 Speaker 2: sharp ideological divides without any explanation that's like radically changing 351 00:19:14,840 --> 00:19:17,879 Speaker 2: the law on the ground. We're seeing more cases June 352 00:19:18,080 --> 00:19:20,679 Speaker 2: where whatever the courts do and granting, we're denying. The 353 00:19:20,760 --> 00:19:24,879 Speaker 2: only public dissenters are some combination of Justices Thomas, Alito 354 00:19:24,920 --> 00:19:27,919 Speaker 2: and Gorsic. We're seeing cases that start on the shadow 355 00:19:27,960 --> 00:19:31,359 Speaker 2: docket that the Court refuses to decide through an emergency 356 00:19:31,400 --> 00:19:34,639 Speaker 2: application and instead punts to the merit's docket. That's what 357 00:19:34,720 --> 00:19:37,800 Speaker 2: happened with the student loan cases from this term, for example. 358 00:19:38,400 --> 00:19:40,359 Speaker 2: And I think part of what that is June is 359 00:19:40,359 --> 00:19:43,719 Speaker 2: actually not necessarily about Chief Justice Roberts, but about to 360 00:19:43,720 --> 00:19:46,720 Speaker 2: some degree Justices Cavanat and Barrett, who you know, I 361 00:19:46,720 --> 00:19:48,639 Speaker 2: don't know if they'd ever admit it publicly, but I 362 00:19:48,640 --> 00:19:51,800 Speaker 2: think have been at least to some degree chastened by 363 00:19:51,840 --> 00:19:54,280 Speaker 2: some of the public criticisms of the shadow docket, and 364 00:19:54,400 --> 00:19:57,439 Speaker 2: I think especially by Justin Haagan criticisms. And thus I 365 00:19:57,480 --> 00:20:01,520 Speaker 2: think more moderate and more calculate in in when they 366 00:20:01,560 --> 00:20:03,320 Speaker 2: are and are not going to vote fermances the release 367 00:20:03,400 --> 00:20:06,000 Speaker 2: in ways that I think has slowed down what I 368 00:20:06,040 --> 00:20:08,480 Speaker 2: think we're the worst excesses of this phenomenon. 369 00:20:09,160 --> 00:20:12,199 Speaker 1: You mentioned just As Alido, and you write in the 370 00:20:12,200 --> 00:20:14,480 Speaker 1: book about a speech he gave in twenty twenty one 371 00:20:15,000 --> 00:20:17,240 Speaker 1: where he said that the shadow docket. He called it 372 00:20:17,280 --> 00:20:20,840 Speaker 1: a sinister term and it portrays the court resorting to 373 00:20:20,920 --> 00:20:25,760 Speaker 1: sneaky and improper methods to get its ways. But in fact, 374 00:20:25,880 --> 00:20:30,080 Speaker 1: isn't that what the court has done with the shadow docket? 375 00:20:30,840 --> 00:20:32,760 Speaker 2: Well, so, I mean, first, you know, I wrote a 376 00:20:32,880 --> 00:20:34,840 Speaker 2: three hundred and sienty page books that tries to suggest 377 00:20:34,840 --> 00:20:37,920 Speaker 2: that it's not an inaccurate description of the courts behavior. 378 00:20:37,960 --> 00:20:40,440 Speaker 2: But I mean the other is I mean, I don't 379 00:20:40,440 --> 00:20:42,720 Speaker 2: mean to get pedenta, but I think that's revealing. The 380 00:20:42,840 --> 00:20:47,560 Speaker 2: term shadow is not, you know, inherently pejorative. Anytime you 381 00:20:47,680 --> 00:20:50,600 Speaker 2: have a light source and an obstruction, you're. 382 00:20:50,440 --> 00:20:51,400 Speaker 3: Gonna have shadows. 383 00:20:51,680 --> 00:20:54,879 Speaker 2: The question is what happens in the shadows? And you know, 384 00:20:55,080 --> 00:20:56,680 Speaker 2: we could call it whatever we want, we call it 385 00:20:56,720 --> 00:21:00,000 Speaker 2: the banana docket, it would still have the same problem 386 00:21:00,000 --> 00:21:03,119 Speaker 2: problematical behavior at the heart of it, which is the 387 00:21:03,320 --> 00:21:08,560 Speaker 2: justices without explaining themselves, issue in rulings that dramatically upend 388 00:21:09,119 --> 00:21:11,240 Speaker 2: both the law on the books and the law on 389 00:21:11,280 --> 00:21:13,480 Speaker 2: the ground. And you know, I don't mean to make 390 00:21:13,560 --> 00:21:15,240 Speaker 2: sort of too much of this, but if we go 391 00:21:15,359 --> 00:21:19,399 Speaker 2: back to where the Court says its power comes from 392 00:21:19,440 --> 00:21:23,280 Speaker 2: and it's legitimacy comes from, you know, the typical reaction, 393 00:21:23,440 --> 00:21:27,480 Speaker 2: the typical defense has been that it's the Justice's ability 394 00:21:27,480 --> 00:21:32,320 Speaker 2: to provide principled justifications for their decision making, not because 395 00:21:32,359 --> 00:21:34,600 Speaker 2: you and I aren't necessarily going to agree with the 396 00:21:34,800 --> 00:21:39,240 Speaker 2: justices principles, but at least will agree that they are principles. 397 00:21:39,480 --> 00:21:42,000 Speaker 2: And the problem with the shadow docket, before you get 398 00:21:42,000 --> 00:21:45,639 Speaker 2: to anything else, is that when the Court doesn't explain itself, 399 00:21:45,680 --> 00:21:49,480 Speaker 2: when there's no written opinion that binds the justices and 400 00:21:49,520 --> 00:21:52,879 Speaker 2: the Court in future cases, and that requires you know, 401 00:21:52,920 --> 00:21:56,320 Speaker 2: the Court to actually treat similar cases with different partisan 402 00:21:56,400 --> 00:21:59,760 Speaker 2: balances similarly, then it looks like the justices are just 403 00:22:00,160 --> 00:22:03,080 Speaker 2: in as partisans, and it looks like voting you know, 404 00:22:03,240 --> 00:22:06,960 Speaker 2: for this day and against that stay reflect no judicial 405 00:22:06,960 --> 00:22:10,159 Speaker 2: philosophy other than one on one team to win in 406 00:22:10,200 --> 00:22:12,920 Speaker 2: the other team to lose. And that's really, I think 407 00:22:12,960 --> 00:22:17,040 Speaker 2: an impression that the Court can ill afford to perpetuate, 408 00:22:17,560 --> 00:22:20,439 Speaker 2: and maybe part of why we've seen injustices other than Alido, 409 00:22:20,880 --> 00:22:25,280 Speaker 2: you know, quietly tweakingly some of their behaviors. On this point, Steve. 410 00:22:24,960 --> 00:22:27,560 Speaker 1: I want to turn for a moment to this term's 411 00:22:27,720 --> 00:22:31,919 Speaker 1: merits docket. Some people are looking at some liberal wins, 412 00:22:32,000 --> 00:22:36,400 Speaker 1: like the Court allowing the Biden administration to set immigration policy, 413 00:22:36,840 --> 00:22:40,359 Speaker 1: rejecting challenges to the Voting Rights Act and the Native 414 00:22:40,359 --> 00:22:44,160 Speaker 1: American Welfare Act, et cetera, and saying, maybe this court 415 00:22:44,200 --> 00:22:47,359 Speaker 1: is not as conservative as we thought. But in the 416 00:22:47,400 --> 00:22:51,320 Speaker 1: final days of the term, the conservative majority issued some 417 00:22:51,480 --> 00:22:58,359 Speaker 1: monumental decisions, eliminating affirmative action, striking down Biden's student loan plan, 418 00:22:58,480 --> 00:23:02,600 Speaker 1: and carving out a first an an exception to antidiscrimination laws. 419 00:23:03,119 --> 00:23:06,320 Speaker 1: So is this court just as conservative as we thought 420 00:23:06,320 --> 00:23:06,639 Speaker 1: it was? 421 00:23:07,240 --> 00:23:10,280 Speaker 2: Yes? And I've written a couple of things about how, 422 00:23:10,440 --> 00:23:12,479 Speaker 2: you know, I really do think that efforts to portray 423 00:23:12,560 --> 00:23:15,919 Speaker 2: the court is moderate really are missing the forest for 424 00:23:16,040 --> 00:23:19,360 Speaker 2: one or two misdescribed trees. But Dude, I actually think 425 00:23:19,440 --> 00:23:22,399 Speaker 2: this dovetails with the broader point of the book, which is, 426 00:23:22,560 --> 00:23:26,320 Speaker 2: if the justices are taken up a case like let's say, 427 00:23:26,440 --> 00:23:30,040 Speaker 2: us versus Texas Right, the case where Texas challenged the 428 00:23:30,080 --> 00:23:34,880 Speaker 2: Biden administration's immigration enforcement priority, and what the justices actually 429 00:23:35,040 --> 00:23:38,399 Speaker 2: hold is that Texas lacked stand in right. That's a 430 00:23:38,480 --> 00:23:42,360 Speaker 2: technical and mostly inscrutable hole band that doesn't really tell 431 00:23:42,440 --> 00:23:46,280 Speaker 2: us much ideologically, and yet it's portrayed as a liberal 432 00:23:46,359 --> 00:23:50,080 Speaker 2: victory because President Biden won and the state of Texas 433 00:23:50,119 --> 00:23:53,720 Speaker 2: lost on a procedural issue that has no partisan balance whatsoever. 434 00:23:53,840 --> 00:23:55,720 Speaker 2: And this is a case that the Court chose to 435 00:23:55,760 --> 00:23:58,840 Speaker 2: take in the first place. So I am very wary 436 00:23:59,119 --> 00:24:02,679 Speaker 2: of effort to sort of draw broad claims about the 437 00:24:02,720 --> 00:24:07,080 Speaker 2: Court by aggregating the data of the merits docket, when 438 00:24:07,119 --> 00:24:10,960 Speaker 2: the merits docket is carefully cultivated by the justices themselves. 439 00:24:11,000 --> 00:24:14,960 Speaker 2: But second, when efforts to make those claims treats all 440 00:24:15,119 --> 00:24:18,080 Speaker 2: dispositions similarly. When we all know June that there's a 441 00:24:18,160 --> 00:24:20,679 Speaker 2: huge difference between staying you know, we're throwing out this 442 00:24:20,760 --> 00:24:24,080 Speaker 2: case because of a procedural defect, versus we're throwing out 443 00:24:24,080 --> 00:24:26,080 Speaker 2: this case because we don't think that you have any 444 00:24:26,119 --> 00:24:28,600 Speaker 2: possible claim on the merits. And so when you see 445 00:24:28,640 --> 00:24:31,520 Speaker 2: statistics about how often a particular justice is in the 446 00:24:31,560 --> 00:24:34,440 Speaker 2: majority or how often the court was unanimous. I would 447 00:24:34,480 --> 00:24:36,960 Speaker 2: just sort of shout from the rooftops, Well, keep in 448 00:24:37,000 --> 00:24:39,840 Speaker 2: mind that those statistics are deeply misleading and aren't actually 449 00:24:39,880 --> 00:24:41,320 Speaker 2: telling you what you think they're telling you. 450 00:24:41,600 --> 00:24:45,159 Speaker 1: Speaking of deeply misleading statistics, the Chief was in the 451 00:24:45,200 --> 00:24:48,480 Speaker 1: majority and divided cases eighty six percent of the time, 452 00:24:48,840 --> 00:24:51,760 Speaker 1: second only to Justice Brett Kavanaugh, who was in the 453 00:24:51,760 --> 00:24:55,119 Speaker 1: majority ninety percent of the time. And so some commentators 454 00:24:55,119 --> 00:24:58,560 Speaker 1: have said, basically, the Chief is back in charge. Do 455 00:24:58,600 --> 00:24:59,239 Speaker 1: you buy that? 456 00:24:59,800 --> 00:25:02,119 Speaker 2: Think two things are true. I think reports of his 457 00:25:02,200 --> 00:25:05,800 Speaker 2: demise were greatly exaggerated, and I think reports of his 458 00:25:06,000 --> 00:25:09,280 Speaker 2: resurgence are greatly exaggerated. The reality is that I think 459 00:25:09,359 --> 00:25:13,560 Speaker 2: the Chief has an ability to do exactly one thing. 460 00:25:14,280 --> 00:25:16,480 Speaker 2: And so this term we saw a number of cases 461 00:25:16,560 --> 00:25:19,199 Speaker 2: Jude where he assigned, you know, the majority opinion in 462 00:25:19,240 --> 00:25:21,720 Speaker 2: a controversial case to himself, which left it for him 463 00:25:21,800 --> 00:25:24,040 Speaker 2: to basically steer the court in the direction he wanted 464 00:25:24,040 --> 00:25:26,320 Speaker 2: to steer it. What that says to me is not 465 00:25:26,400 --> 00:25:29,800 Speaker 2: that the Chief has somehow regained power that he has lost, 466 00:25:30,000 --> 00:25:32,520 Speaker 2: but rather that, you know, the cases that the court 467 00:25:32,560 --> 00:25:36,080 Speaker 2: heard this term lent themselves to that kind of investment 468 00:25:36,640 --> 00:25:39,399 Speaker 2: versus the cases from last turn. And so, you know, 469 00:25:39,440 --> 00:25:41,760 Speaker 2: folks look very very carefully at the fact that the 470 00:25:41,840 --> 00:25:45,399 Speaker 2: Chief was sort of concurring separately in Dobbs, that's the 471 00:25:45,440 --> 00:25:47,679 Speaker 2: case that was perfectly set up to split him from 472 00:25:47,720 --> 00:25:50,320 Speaker 2: other conservatives, whereas almost none of the cases from this 473 00:25:50,440 --> 00:25:53,080 Speaker 2: term were. So, you know, I guess it goes back 474 00:25:53,119 --> 00:25:55,439 Speaker 2: to the same phenomenon. And really, June, it's the problem 475 00:25:55,440 --> 00:25:57,199 Speaker 2: with the heart of the book, which is that the 476 00:25:57,280 --> 00:26:00,680 Speaker 2: way we had been conditioned to think about talk about 477 00:26:00,680 --> 00:26:02,359 Speaker 2: the court, to assess the Court at the end of 478 00:26:02,359 --> 00:26:07,760 Speaker 2: the term buys into sort of necessarily incorporate fairly profound 479 00:26:08,359 --> 00:26:12,600 Speaker 2: skews that the Court has very carefully developed over the 480 00:26:12,680 --> 00:26:14,320 Speaker 2: years and that are sort of hidden in play in 481 00:26:14,359 --> 00:26:15,960 Speaker 2: sight in the work of the Supreme Court. 482 00:26:16,359 --> 00:26:20,760 Speaker 1: The liberals wrote some strong and impassioned dissents at the 483 00:26:20,880 --> 00:26:23,359 Speaker 1: end of the term, and the Chief in the last 484 00:26:23,440 --> 00:26:27,000 Speaker 1: line of his final opinion of the term said, reasonable 485 00:26:27,040 --> 00:26:30,679 Speaker 1: minds may disagree in fact three do, but do not 486 00:26:30,800 --> 00:26:35,879 Speaker 1: mistake these heartfelt disagreements for disparagement. It's important that the 487 00:26:35,920 --> 00:26:39,800 Speaker 1: public not being misled either. Any such perception would be 488 00:26:39,800 --> 00:26:43,040 Speaker 1: harmful to this institution in our country. What was he 489 00:26:43,119 --> 00:26:44,080 Speaker 1: trying to say there? 490 00:26:44,480 --> 00:26:46,720 Speaker 2: The Chief knows that it's the last opinion of the term, 491 00:26:46,720 --> 00:26:48,440 Speaker 2: and I think it's really remarkable that that's where he 492 00:26:48,520 --> 00:26:50,679 Speaker 2: chose to add. You know, I think there's almost nothing 493 00:26:50,720 --> 00:26:53,920 Speaker 2: that John Roberts says by accident, and that he chose 494 00:26:53,960 --> 00:26:57,040 Speaker 2: to end there, to me, was an effort to say 495 00:26:57,520 --> 00:27:00,800 Speaker 2: that there is too much public criticism the Court right 496 00:27:00,840 --> 00:27:05,760 Speaker 2: now that is sort of delegitimizing as opposed to Stuffsn't 497 00:27:05,800 --> 00:27:08,680 Speaker 2: it right? That to him, there's a distinction between legitimate 498 00:27:08,720 --> 00:27:11,640 Speaker 2: criticism of the Court and illegitimate crism in the court. 499 00:27:11,840 --> 00:27:13,920 Speaker 2: And I think we've heard that from Justice Alito as well, 500 00:27:14,040 --> 00:27:18,119 Speaker 2: especially in his I'll put in quotation marks interview with 501 00:27:18,160 --> 00:27:21,160 Speaker 2: the Wall Street Journal back in April. And I guess, Jude, 502 00:27:21,359 --> 00:27:24,639 Speaker 2: what really sort of strikes me about that is, you know, 503 00:27:24,720 --> 00:27:26,280 Speaker 2: to sort of tie it back to one of the 504 00:27:26,280 --> 00:27:28,400 Speaker 2: themes of the book, because it gets to this idea 505 00:27:29,080 --> 00:27:34,560 Speaker 2: that the Court has become its own keeper of its legitimacy, 506 00:27:34,640 --> 00:27:37,840 Speaker 2: that the Court has decided for itself, that like it 507 00:27:37,920 --> 00:27:41,920 Speaker 2: is autonomous of the political branches, it is autonomous of 508 00:27:41,960 --> 00:27:44,560 Speaker 2: the people. And one of the things that the book 509 00:27:44,600 --> 00:27:47,000 Speaker 2: tries really hard to make clear to folks. For better 510 00:27:47,040 --> 00:27:48,880 Speaker 2: or for worse. You know, we can debate the wisdom 511 00:27:48,880 --> 00:27:50,240 Speaker 2: of this till the cows come home. 512 00:27:50,800 --> 00:27:55,720 Speaker 3: But this is actually a relatively new development that you know, 513 00:27:55,760 --> 00:27:58,240 Speaker 3: for the better part of two hundred years, the Supreme Court, 514 00:27:58,800 --> 00:28:02,400 Speaker 3: all its worth, was part of this pretty healthy, robust 515 00:28:02,480 --> 00:28:08,560 Speaker 3: inner branch dynamic where the justices were routinely in conversation. 516 00:28:08,000 --> 00:28:10,720 Speaker 2: With the executive branch and the legislative branch, about what 517 00:28:10,760 --> 00:28:13,720 Speaker 2: their docket should look like, about what their budget should 518 00:28:13,760 --> 00:28:16,440 Speaker 2: look like, even their building. I mean, the court sat 519 00:28:16,600 --> 00:28:19,760 Speaker 2: in the capitol till nineteen thirty five. And you know, 520 00:28:19,840 --> 00:28:21,879 Speaker 2: I think part of how we got to where we 521 00:28:21,960 --> 00:28:24,879 Speaker 2: are today, June is this is a court that, for 522 00:28:24,960 --> 00:28:29,080 Speaker 2: better or for worse, does not believe it is accountable 523 00:28:29,160 --> 00:28:31,760 Speaker 2: to the political branches, and does not believe that it 524 00:28:31,800 --> 00:28:35,199 Speaker 2: ought to be accountable to the political branches. And you know, 525 00:28:35,359 --> 00:28:37,440 Speaker 2: part of the problem is that the political branches aren't 526 00:28:37,480 --> 00:28:40,360 Speaker 2: doing anything to push back where you know, what used 527 00:28:40,400 --> 00:28:42,960 Speaker 2: to be a pretty healthy understanding the part of the 528 00:28:43,080 --> 00:28:45,719 Speaker 2: job of the political branches was to check the courts. 529 00:28:46,000 --> 00:28:49,200 Speaker 2: Has I think been overtaken by the you know, sort 530 00:28:49,240 --> 00:28:54,120 Speaker 2: of polarization where now you know, everyone perceives any attack 531 00:28:54,200 --> 00:28:57,720 Speaker 2: on the Court as partisan as Democrats attacking or republican court. 532 00:28:58,120 --> 00:29:00,400 Speaker 2: And I think that's a really big part of how 533 00:29:00,440 --> 00:29:02,680 Speaker 2: we got to where we are. And frankly, June, I 534 00:29:02,720 --> 00:29:04,360 Speaker 2: also think it's part of how we get out of this, 535 00:29:04,960 --> 00:29:09,000 Speaker 2: which is trying to figure out how to restore public 536 00:29:09,040 --> 00:29:12,360 Speaker 2: discourse about the Court that talks about the Court as 537 00:29:12,400 --> 00:29:14,880 Speaker 2: an institution, that looks at the Court as an institution, 538 00:29:14,960 --> 00:29:19,280 Speaker 2: that evaluates the Court as an institution, so that when 539 00:29:19,320 --> 00:29:25,120 Speaker 2: there are institutional behaviors that seem worthy of reproach and reform, 540 00:29:25,480 --> 00:29:29,800 Speaker 2: it's not just the folks in the minority clamoring for 541 00:29:29,840 --> 00:29:33,120 Speaker 2: those reforms, but everybody, because we all ought to be 542 00:29:33,200 --> 00:29:36,040 Speaker 2: invested in having a healthy Supreme Court. And that is 543 00:29:36,080 --> 00:29:38,000 Speaker 2: a huge part of why I wrote this book and 544 00:29:38,040 --> 00:29:40,920 Speaker 2: a huge part of what I hope appeals to folks 545 00:29:40,920 --> 00:29:41,800 Speaker 2: as they read the book. 546 00:29:42,520 --> 00:29:46,080 Speaker 1: Your book is a fascinating read, Steve, and so well researched. 547 00:29:46,120 --> 00:29:49,240 Speaker 1: Of course. That's Professor Steven Vladik of the University of 548 00:29:49,280 --> 00:29:52,640 Speaker 1: Texas Law School. His book is called The Shadow Docket, 549 00:29:52,880 --> 00:29:56,719 Speaker 1: How the Supreme Court uses stealth rulings to amass power 550 00:29:56,800 --> 00:29:59,600 Speaker 1: and undermine the Republic. And that's it for this edition 551 00:29:59,600 --> 00:30:02,160 Speaker 1: of The bloom Berg Law Show. Remember you can always 552 00:30:02,160 --> 00:30:05,120 Speaker 1: get the latest legal news on our Bloomberg Law podcasts. 553 00:30:05,360 --> 00:30:08,400 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 554 00:30:08,560 --> 00:30:13,600 Speaker 1: www Dot bloomberg dot com, slash podcast Slash Law, And 555 00:30:13,680 --> 00:30:16,720 Speaker 1: remember to tune into The Bloomberg Law Show every weeknight 556 00:30:16,800 --> 00:30:20,280 Speaker 1: at ten pm Wall Street Time. I'm June Grosso and 557 00:30:20,320 --> 00:30:21,800 Speaker 1: you're listening to Bloomberg