WEBVTT - The Supreme Court's Shadow Docket 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio 0:00:09.320 --> 0:00:13.520 Late tonight. The US Supreme Court ruled churches in California 0:00:13.960 --> 0:00:16.640 can hold indoor services during the pandemic. 0:00:16.920 --> 0:00:20.240 A major decision by the Supreme Court blocking the Biden 0:00:20.239 --> 0:00:24.400 Administration's temporary ban on eviction of a deeply divided Supreme 0:00:24.440 --> 0:00:28.200 Court is allowing a Texas law that bans most abortions 0:00:28.240 --> 0:00:29.560 to remain in force. 0:00:30.200 --> 0:00:35.040 The unsigned, unexplained decisions often come late at night, but 0:00:35.120 --> 0:00:38.199 in the light of day, their impact can be profound 0:00:38.280 --> 0:00:42.040 for millions of Americans. In recent years, the Supreme Court 0:00:42.080 --> 0:00:44.919 has used its shadow docket more and more to make 0:00:44.920 --> 0:00:49.360 critical decisions with real world effects behind closed doors, on 0:00:49.479 --> 0:00:53.320 everything from abortion and religious rights to election questions and 0:00:53.400 --> 0:00:58.760 immigration policies. Decisions that just appear whenever, and that can't 0:00:58.800 --> 0:01:03.200 be analyzed or fully understood because there's no opinion to read, 0:01:03.600 --> 0:01:07.600 no oral arguments to listen to. Constitutional law Professor Stephen 0:01:07.680 --> 0:01:10.679 Vlannok of the University of Texas Law School has been 0:01:10.760 --> 0:01:14.520 studying this for years, and his new book is appropriately 0:01:14.720 --> 0:01:18.959 entitled The Shadow Docket. How the Supreme Court uses stealth 0:01:19.080 --> 0:01:22.679 rulings to amass power and undermine the Republic, and he 0:01:22.760 --> 0:01:25.680 joins me, Now, for those who may not know, it's 0:01:25.680 --> 0:01:28.360 hard to believe anyone doesn't know who listens to this show, 0:01:28.400 --> 0:01:31.080 But tell us what the shadow docket is? 0:01:31.880 --> 0:01:34.600 Sure, I mean, So the term itself was coined in 0:01:34.760 --> 0:01:39.479 twenty fifteen by Willbosity of Chicago, and you know, Will 0:01:39.560 --> 0:01:40.600 meant it, he joins me. 0:01:40.720 --> 0:01:43.360 Now, for those who may not know, it's hard to 0:01:43.400 --> 0:01:45.880 believe anyone doesn't know who listens to this show, But 0:01:46.480 --> 0:01:48.480 tell us what the shadow docket is? 0:01:49.280 --> 0:01:52.000 Sure, I mean, So the term itself was coined in 0:01:52.160 --> 0:01:56.920 twenty fifteen by Willbosity of Chicago, And you know, Will 0:01:56.960 --> 0:01:59.800 meant it really as a catch all as basically this 0:02:00.040 --> 0:02:04.880 evocative shorthand for everything that the Supreme Court does other 0:02:05.000 --> 0:02:08.840 than the big meriage decisions that come down each May 0:02:08.880 --> 0:02:11.760 and June. And so Will's basic insight was that there 0:02:11.800 --> 0:02:16.600 are you know, literally thousands of unsigned, unexplained orders that's 0:02:16.600 --> 0:02:20.000 the Supreme Court hands down every year that get barely 0:02:20.040 --> 0:02:23.799 a sort of a minuscule percentage of the attention of 0:02:23.840 --> 0:02:28.000 the sixty ish merriage rules the Court hands down, even 0:02:28.000 --> 0:02:30.359 though you know, for a fair number of those unsigned orders, 0:02:30.360 --> 0:02:34.240 they actually have pretty significant impacts, both practically and legally. 0:02:34.720 --> 0:02:35.680 So you know, the. 0:02:35.639 --> 0:02:37.560 Idea behind the term was just to say, hey, we 0:02:37.560 --> 0:02:40.280 should start paying more attentions than this slice of the 0:02:40.280 --> 0:02:43.200 Supreme Court's work, and we should you know, start by 0:02:43.400 --> 0:02:45.880 calling it something. And I guess that's where it all started. 0:02:46.040 --> 0:02:48.920 You right, that The bottom line is that most of 0:02:48.919 --> 0:02:52.560 what the Court does is behind the scenes, shrouded in obscurity, 0:02:52.720 --> 0:02:55.880 driven by norms far more than rules, and informed by 0:02:55.880 --> 0:03:00.160 the specter of deeply strategic behavior from all sides to 0:03:00.240 --> 0:03:03.760 which the public is generally not privy. Tell us what 0:03:03.800 --> 0:03:04.720 you mean by that. 0:03:05.200 --> 0:03:06.680 So one of the things that I try to do 0:03:06.720 --> 0:03:09.720 in the book for folks who may not be similiar 0:03:09.760 --> 0:03:12.040 with the history of the court is to put into 0:03:12.240 --> 0:03:16.600 context how the Supreme Court of today came to have 0:03:16.880 --> 0:03:20.880 just so much control over its docket, over the cases 0:03:20.919 --> 0:03:25.120 it hears, over when it chooses to intervene in cases. 0:03:25.320 --> 0:03:27.440 And so, you know, the idea June was to show 0:03:27.520 --> 0:03:31.040 folks how really started in the early twentieth century with 0:03:31.200 --> 0:03:34.400 the rise of what we call sircirari, the rise of 0:03:35.040 --> 0:03:38.880 the Supreme Court's discretion over its docket, the rise of 0:03:38.920 --> 0:03:42.040 the justice ability to pick and choose not just which 0:03:42.160 --> 0:03:45.000 cases they're going to take up, but which issues they are 0:03:44.920 --> 0:03:47.760 going to resolve within those cases. That that was really 0:03:47.840 --> 0:03:51.760 a font for consolidating power, that the Supreme Court, with 0:03:51.880 --> 0:03:55.760 the rise of Scirari, claim more and more authority both 0:03:55.920 --> 0:03:59.080 to decide and to not decide June in ways that 0:03:59.200 --> 0:04:02.600 are complete invisible to us. So you know, when the 0:04:02.720 --> 0:04:05.320 justices decide whether to take up a case or not, 0:04:05.760 --> 0:04:09.240 all that the public knows is what the briefs say 0:04:09.560 --> 0:04:12.080 and when the justices are going to talk about the case, 0:04:12.120 --> 0:04:16.440 But nothing about the justice deliberations, nothing about their vote 0:04:16.680 --> 0:04:19.560 is ever made public except the bottom line whether the 0:04:19.560 --> 0:04:22.080 case is taken up or not taken up. And you know, 0:04:22.240 --> 0:04:26.920 when you think about the implications of grants or denial, 0:04:27.000 --> 0:04:30.000 the Serciari and the book talks about the same sex's 0:04:30.000 --> 0:04:32.640 marriage cases from twenty fourteen twenty fifteen. It's an example 0:04:32.680 --> 0:04:35.520 of this. It's actually pretty remarkable to think about how 0:04:35.560 --> 0:04:38.400 little we know about why the justices are doing what 0:04:38.440 --> 0:04:41.039 they're doing, and even when we do know, like even 0:04:41.080 --> 0:04:43.440 when we get to the merits docket and the court, 0:04:43.560 --> 0:04:46.200 you know, has an additional round of briefing and oral 0:04:46.279 --> 0:04:49.320 argument and a written opinion. Even then, we still don't 0:04:49.360 --> 0:04:52.200 know necessarily as much as we might like to. And that's, 0:04:52.240 --> 0:04:54.800 you know, so much more than we know about the 0:04:54.920 --> 0:04:57.480 thousands and thousands of dispositions on the shadow docket. 0:04:57.920 --> 0:05:01.920 So you give a statistic that's quite stunning. Only one 0:05:01.960 --> 0:05:04.919 percent of the Court's decisions are from the merits docket. 0:05:05.040 --> 0:05:08.160 So almost ninety nine percent come from the shadow docket. 0:05:08.480 --> 0:05:10.360 That's right. And you know what's crazy about that is 0:05:10.400 --> 0:05:13.000 it's even higher if you consider that even the one 0:05:13.040 --> 0:05:16.039 percent of decisions on the merits docket only got to 0:05:16.080 --> 0:05:19.680 the merit docket because of an unsigned, unexplained order from 0:05:19.720 --> 0:05:22.279 the justices agreement takes the case up in the first place. 0:05:22.400 --> 0:05:24.280 And so you know, I wrote the book at least 0:05:24.279 --> 0:05:26.279 in part. I mean, there's the second part about what's 0:05:26.279 --> 0:05:28.000 been happening lately. But I wrote the book at least 0:05:28.000 --> 0:05:31.320 in part to really help folks understand in context that, 0:05:31.440 --> 0:05:33.640 you know, when the Supreme Court has a term like 0:05:33.680 --> 0:05:35.599 its most recent one, where at the end of the 0:05:35.680 --> 0:05:38.159 term you see all these claims about how you know, 0:05:38.279 --> 0:05:41.080 the justices didn't necessarily vote the way you might have expected, 0:05:41.240 --> 0:05:44.200 and you know, claims about how often the justices were unanimous, 0:05:44.240 --> 0:05:46.920 and claims about which justice is voted together, you know, 0:05:47.040 --> 0:05:49.000 all those claims need to be taken with a pretty 0:05:49.040 --> 0:05:52.560 healthy dose of salt, because the reality is that these 0:05:52.600 --> 0:05:56.040 are cases the justices have chosen. And so the notion 0:05:56.160 --> 0:05:58.800 that you know, this is some kind of random sample 0:05:58.839 --> 0:06:01.160 that tells us a lot of about where the court is, 0:06:01.640 --> 0:06:04.360 I think it's belied by that pretty important but often 0:06:04.400 --> 0:06:05.400 elusive insight. 0:06:05.880 --> 0:06:09.920 How often is the shadow docket a harbinger of what's 0:06:10.000 --> 0:06:13.560 to come on the merits docket? And how often do 0:06:13.760 --> 0:06:20.080 those emergency orders actually end up being the final decision 0:06:20.120 --> 0:06:20.640 in the case. 0:06:21.600 --> 0:06:23.360 Sure, I mean, so, you know, we've been talking mostly 0:06:23.400 --> 0:06:26.960 so far about the dominant by volume piece of the 0:06:26.960 --> 0:06:29.800 shadow docket, which is grants or denials of sercirari. So 0:06:30.000 --> 0:06:32.560 there's another piece of the shadow docket, which is grants 0:06:32.640 --> 0:06:35.680 or denials of emergency relief. This is when while a 0:06:35.760 --> 0:06:38.039 case is working his way through the lower courts, a 0:06:38.120 --> 0:06:41.280 party goes to the Supreme Court and says, hey, you know, 0:06:41.320 --> 0:06:44.840 we would like you to change the status quo right now, 0:06:44.880 --> 0:06:48.080 even before the case comes back to you. And you know, Jude, 0:06:48.080 --> 0:06:50.640 and what's remarkable about emergency relief is that there's been 0:06:50.680 --> 0:06:56.000 a completely revolutionary shift in when and how the justices 0:06:56.279 --> 0:06:58.560 have been granted an emergency relief in the last six 0:06:58.640 --> 0:07:01.760 seven years. You know, Hill, about ten years ago, you 0:07:01.920 --> 0:07:05.360 only tended to see the full court granting or denying 0:07:05.400 --> 0:07:08.840 emergency release in capital cases where there was like a 0:07:08.880 --> 0:07:11.560 prisoner who was trying to have his claims heard before 0:07:11.600 --> 0:07:14.120 he was executed, or a state was trying to have 0:07:14.760 --> 0:07:18.200 a stay imposed by a lower court unfrozen by the justices. 0:07:18.560 --> 0:07:20.240 What we see in the last six seven years, June 0:07:20.320 --> 0:07:23.480 is now almost every major policy dispute you know, gets 0:07:23.520 --> 0:07:26.600 to the Supreme Court first as an emergency application, where 0:07:27.000 --> 0:07:30.200 either the party challenge and the policy wants the policy 0:07:30.280 --> 0:07:34.680 block pending Supreme Court review, or the government responsible for 0:07:34.720 --> 0:07:37.800 the policy wants it unblocked. And you know what's I 0:07:37.840 --> 0:07:41.480 think so remarkable about that shift is first it's happened 0:07:41.520 --> 0:07:44.880 completely in the dark, without any you know, public recognition 0:07:44.960 --> 0:07:47.160 or acknowledgment by the justices that there's even been a shit. 0:07:47.360 --> 0:07:50.840 But second, all the while, the Court has continued its 0:07:51.200 --> 0:07:54.640 norm of not explaining itself, so that you have orders 0:07:54.960 --> 0:07:58.680 that are producing massive effects on the ground, allowing President 0:07:58.720 --> 0:08:02.760 Trump to build his border wall, blocking President Biden's vaccination 0:08:02.880 --> 0:08:06.560 mandates for large employers, to allow in Texas's controversial six 0:08:06.600 --> 0:08:09.600 weeks abortion band to go into effect, allowing Alabama to 0:08:09.720 --> 0:08:13.040 use on lawful congressional districts in last year's midterms. And 0:08:13.200 --> 0:08:16.160 these orders have no rationale. And so Jane, this is 0:08:16.200 --> 0:08:18.040 I think where your question's going. You know, it would 0:08:18.080 --> 0:08:20.880 be one thing if you know the ruling of the 0:08:20.880 --> 0:08:23.320 emergency stage, if all the court was doing was saying, listen, 0:08:23.560 --> 0:08:27.000 we're eventually going to rule for this party over that party, 0:08:27.040 --> 0:08:28.360 so we might as well just do it now and 0:08:28.400 --> 0:08:31.000 get it out of the way. But that's absolutely not 0:08:31.160 --> 0:08:33.440 what's happening. I mean, we've seen a number of cases 0:08:33.520 --> 0:08:37.199 this term where how the court ruled at the emergency 0:08:37.240 --> 0:08:40.720 application stage ended up not being predictive of what the 0:08:40.760 --> 0:08:42.959 court did on the merits in the Alabama redistrict. In 0:08:43.040 --> 0:08:46.560 case last year, you know, in an unsigned, unexplained order 0:08:46.600 --> 0:08:50.080 of five four, court let Alabama use maps that lower 0:08:50.120 --> 0:08:53.040 courts said we're unlawful. This year, a five four majority 0:08:53.040 --> 0:08:54.720 of said, oh wait, the lower courts were right, they 0:08:54.760 --> 0:08:59.360 are unlawful. Same thing with President Biden's immigration enforcement priority. 0:08:59.520 --> 0:09:03.040 You know, last year the Court refused to freeze a 0:09:03.080 --> 0:09:06.840 lower court injunction against those priorities. This year the Court 0:09:06.880 --> 0:09:09.800 reversed that injunction. So part of the problem with the 0:09:09.840 --> 0:09:13.120 book document is not just the explosion and when and 0:09:13.240 --> 0:09:17.400 how the justices are using you know, unsigned unexplained orders 0:09:17.440 --> 0:09:21.600 granting emergency relief in ways it has profound impacts on 0:09:21.640 --> 0:09:24.280 the ground, but also that it turns out those orders 0:09:24.280 --> 0:09:26.679 are not predictive, and so the fact that the justices 0:09:26.679 --> 0:09:29.840 are not explaining themselves, you know, at the emergency application 0:09:29.960 --> 0:09:33.120 stage is all the more problematic when they seem to 0:09:33.160 --> 0:09:35.560 be changed in their minds at the merriage stage. 0:09:36.360 --> 0:09:39.240 You know, the increase in the last six to seven 0:09:39.320 --> 0:09:42.719 years is under the Roberts Court. Do you think that 0:09:42.760 --> 0:09:47.680 the justices are deliberately doing this, thinking this through or 0:09:47.840 --> 0:09:51.120 they would say, well, these emergency things come up and 0:09:51.480 --> 0:09:54.520 we don't take that many cases anymore, which is another problem. 0:09:54.880 --> 0:09:56.760 What do you think their explanation would be. 0:09:57.040 --> 0:09:59.160 I mean, you know, Justice Alito at least has tried 0:09:59.200 --> 0:10:02.960 to proffer public explanation, and he's been very in line 0:10:02.960 --> 0:10:05.640 with the you know, don't blame us, we don't make 0:10:05.679 --> 0:10:08.200 these applications up, people come to us aster a relief, 0:10:08.240 --> 0:10:12.040 and so you know, from Justice Alito's perspective, it's very reactive, 0:10:12.160 --> 0:10:14.440 where all the justice are doing is just reacting one 0:10:14.440 --> 0:10:17.160 at a time. And you know, Dune, that explanation, I 0:10:17.200 --> 0:10:20.319 think would have made sense to a point, right, there 0:10:20.360 --> 0:10:24.120 was a real flurry of applications from the Trump administration 0:10:24.360 --> 0:10:27.720 in twenty seventeen and twenty eighteen where you know, maybe 0:10:27.720 --> 0:10:29.920 you could say, yeah, the Justice just never really sat 0:10:30.000 --> 0:10:32.320 down and thought about it. The problem is the book 0:10:32.400 --> 0:10:35.120 documents is that by the time you get to all 0:10:35.160 --> 0:10:38.839 of the COVID related cases in the fall of twenty 0:10:38.920 --> 0:10:41.760 twenty and the winter twenty twenty one, you have a 0:10:41.840 --> 0:10:45.240 court that is at this point acting willfully in the 0:10:45.280 --> 0:10:49.640 sense that the justices are taking applications for emergency relief 0:10:49.800 --> 0:10:53.680 and using those to resolve issues that were pending before 0:10:53.760 --> 0:10:56.280 them in other cases on their merits docket. And so 0:10:56.320 --> 0:10:58.280 it's really hard by the time you get to that 0:10:58.440 --> 0:11:01.600 point to say this was all just the justices reacting, 0:11:02.120 --> 0:11:06.479 as opposed to the justices picking you know, emergency applications 0:11:06.679 --> 0:11:09.520 as the place to make these rulings as the place 0:11:09.520 --> 0:11:13.040 to have this impact versus the merriage docket. That's part 0:11:13.080 --> 0:11:14.920 of why, I mean, the book really does try to 0:11:14.960 --> 0:11:18.600 proceed chronologically through the last six years, because I think 0:11:18.920 --> 0:11:22.040 if you see how the pattern builds, you know, I 0:11:22.040 --> 0:11:26.440 think it really does become clear why even the more 0:11:26.480 --> 0:11:30.000 benign explanations that might have excused some of the Court's 0:11:30.000 --> 0:11:33.120 conducts in twenty seventeen, twenty eighteen, twenty nineteen start to 0:11:33.160 --> 0:11:34.959 fall apart when you get to late twenty twenty and 0:11:35.000 --> 0:11:35.959 early twenty twenty one. 0:11:36.400 --> 0:11:39.719 So, I like the subtitle of chapter four is how 0:11:39.760 --> 0:11:43.520 the Trump administration blew up the shadow docket. So in 0:11:43.600 --> 0:11:47.120 just four years, the Trump Justice Department asked the Court 0:11:47.160 --> 0:11:52.040 for emergency relief forty one times. That strategy worked for 0:11:52.120 --> 0:11:54.800 the Trump administration, didn't it It did? 0:11:54.840 --> 0:11:56.880 I mean, and we should put that stats in context. 0:11:56.880 --> 0:11:59.360 I mean, so forty one times in four years compared 0:11:59.360 --> 0:12:02.240 to the Bush bomb administrations, which you know, June two, 0:12:02.400 --> 0:12:06.360 very different to term presidencies that across sixteen years had 0:12:06.360 --> 0:12:08.839 only gone to the Court eight times. And so it's 0:12:08.840 --> 0:12:11.320 really it's like a twenty fold increase in how often 0:12:11.360 --> 0:12:13.160 the federal government was going to the Supreme Court for 0:12:13.160 --> 0:12:15.360 them mergency release. And as you say, the Court was 0:12:15.480 --> 0:12:19.800 largely acquiescent. And you know, part of what's frustrating about 0:12:19.800 --> 0:12:24.480 this entire topic is because the justices are never explaining themselves, 0:12:24.559 --> 0:12:26.600 were really left to try to sort of put their 0:12:26.600 --> 0:12:30.160 best arguments, you know, into their mouths and speculate and so, 0:12:30.600 --> 0:12:34.720 you know, one common defense of the Court's aggressive interventions 0:12:34.800 --> 0:12:37.880 during the Trump administration was that lower courts had sort 0:12:37.880 --> 0:12:41.520 of run amok with nationwide injunctions and that the Court 0:12:41.559 --> 0:12:45.000 was stepping in to basically mitigate the effects of nationwide 0:12:45.040 --> 0:12:48.600 injunctions to which the justices were opposed, you know, respecting 0:12:48.720 --> 0:12:51.600 the deference they thought the president was entitled to when 0:12:51.640 --> 0:12:55.080 it comes to say, immigration policy. But the problem with 0:12:55.120 --> 0:12:57.000 that argument is if you look fast forward to the 0:12:57.000 --> 0:13:00.880 Biden administration, it doesn't hold up because they administration has 0:13:00.920 --> 0:13:05.559 been subject to a similar flood of nationwide injunctions, including 0:13:05.600 --> 0:13:08.760 in immigration cases. The Biden administration has gone to the 0:13:08.800 --> 0:13:13.480 court multiple times in immigration cases for the same emergency 0:13:13.520 --> 0:13:17.200 relief that the Trump administration got. The Court has denied 0:13:17.360 --> 0:13:20.320 emergency relief in those cases, and yet then the Biden 0:13:20.320 --> 0:13:23.439 administration wins those cases on the merits. So, you know, June, 0:13:23.480 --> 0:13:27.560 it's really i think it complicates the entire story that 0:13:27.679 --> 0:13:31.400 there's sort of no spoken, no written defense by the 0:13:31.480 --> 0:13:34.080 justices of the behavior. But one of the things I 0:13:34.200 --> 0:13:36.960 really try to do in the book is present as 0:13:37.160 --> 0:13:40.920 much evidence as possible and as much data as possible, 0:13:41.240 --> 0:13:44.440 basically to show that like what would otherwise appear to 0:13:44.480 --> 0:13:50.520 be plausible benign explanations for the justices behavior. Just don't 0:13:50.559 --> 0:13:53.959 describe the entire data set, and don't hold up when 0:13:54.000 --> 0:13:57.640 you scale out from any one specific subset of cases. 0:13:57.920 --> 0:14:01.760 You mentioned the COVID case is the KATODOCTA cases during COVID, 0:14:02.080 --> 0:14:04.160 and you have a whole chapter devoted to this. But 0:14:04.559 --> 0:14:07.280 tell us how you think the Court used the shadow 0:14:07.360 --> 0:14:09.960 DOCA to expand religious liberty rights. 0:14:10.640 --> 0:14:12.320 Sure, I mean, so you know, I think folks will 0:14:12.320 --> 0:14:16.720 remember that, starting especially with Justice Barrett's confirmation in late 0:14:16.760 --> 0:14:20.640 October twenty twenty, there was a really sharp increase in 0:14:20.720 --> 0:14:24.960 the Court's intervention to block COVID mitigation measures, especially in 0:14:25.000 --> 0:14:28.000 Blue states on religious liberty grounds, starting the night before 0:14:28.040 --> 0:14:30.160 Thanks Given. And this was a shift. I mean, there 0:14:30.200 --> 0:14:32.440 had been June, as you probably remember, a couple of 0:14:32.520 --> 0:14:35.280 cases in the summer of twenty twenty where the Court 0:14:35.360 --> 0:14:39.240 had refused to grant emergency relief to block California and 0:14:39.280 --> 0:14:42.880 Nevada restrictions over four decents, where to Justice Roberts had 0:14:42.960 --> 0:14:46.640 joined the four Democratic appointees to deny relief. You know, 0:14:46.760 --> 0:14:49.200 now Roberts is not the fifth vote, he's the fourth. 0:14:49.480 --> 0:14:52.120 And so almost overnight after Justice Barrett joins the court, 0:14:52.160 --> 0:14:57.359 we start seeing really aggressive orders blocking New York, California, 0:14:57.960 --> 0:15:02.480 New Jersey, Colorado, COVID restrictions on religious liberty grounds. And 0:15:02.480 --> 0:15:05.880 this all culminates with a decision in April twenty twenty 0:15:05.920 --> 0:15:09.320 one called Tandon versus Newsom. This time around, the court 0:15:09.320 --> 0:15:12.320 actually wrote something, so there was a majority Pitton in 0:15:12.320 --> 0:15:14.760 tand in. And one of the things the Court does 0:15:14.920 --> 0:15:18.480 in Tandon is it embraces what scholars call the most 0:15:18.600 --> 0:15:22.280 favored nation theory of the free exercise clause, the idea 0:15:22.400 --> 0:15:27.320 that when you have any kind of law of general applicability, 0:15:27.440 --> 0:15:30.640 a zone in regulation accur to you, I mean anything 0:15:30.680 --> 0:15:34.080 that applies to all. If the law makes any exceptions 0:15:34.320 --> 0:15:37.720 for secular businesses, it must also make an exception for 0:15:37.800 --> 0:15:41.200 religious ones. And the Court used that theory, which it 0:15:41.240 --> 0:15:47.160 had never embraced before, to block California's restrictions on how 0:15:47.200 --> 0:15:49.560 many different people you could have in a private home. 0:15:49.720 --> 0:15:52.160 So California had said, you know, you can only have 0:15:52.360 --> 0:15:55.520 people from three different households in any private home at 0:15:55.520 --> 0:15:58.360 any one time as one of its COVID restrictions. And 0:15:58.400 --> 0:16:01.120 the Court says, but because there are secular exceptions, so 0:16:01.200 --> 0:16:04.200 that there must be a religious exception, and therefore blocked 0:16:04.200 --> 0:16:07.640 the California law June. That's remarkable in two respects. First, 0:16:07.920 --> 0:16:11.760 everyone agrees, even the folks who liked that decision agreed 0:16:11.880 --> 0:16:14.840 that that's a new principle of free exercise jurisprudence, that 0:16:14.880 --> 0:16:17.600 the Court made law in tandon in a way that 0:16:17.640 --> 0:16:20.640 at least generally is not supposed to on the shadow docket. 0:16:20.760 --> 0:16:25.800 But second, the specific relief that the applicants had sought 0:16:25.840 --> 0:16:29.960 in tent was an injunction pendent appeal, the most extreme 0:16:30.080 --> 0:16:32.720 form of emergency relief, where what they're supposed to show 0:16:32.840 --> 0:16:37.640 is that their right to relief was quote indisputably clear unquote. 0:16:37.800 --> 0:16:39.720 And here we have the Supreme Court staying it was 0:16:39.800 --> 0:16:44.320 indisputably clear that the principle that we had never previously 0:16:44.360 --> 0:16:48.320 adopted was violated by the state of California. That's really 0:16:48.360 --> 0:16:51.000 how far things have gone on the shadow docket by 0:16:51.040 --> 0:16:52.160 April twenty twenty one. 0:16:52.440 --> 0:16:56.880 Obviously this has not passed the attention of the Supreme 0:16:56.920 --> 0:17:01.760 Court justices. Has Justice Elena Kaye been the loudest voice 0:17:01.760 --> 0:17:03.840 in calling out the shadow docket? 0:17:04.119 --> 0:17:06.920 She has, I mean, so Justice Kagan has been very 0:17:06.960 --> 0:17:11.280 critical of the conservative justice behavior on the shadow docket, 0:17:11.600 --> 0:17:15.080 starting with her descent in September twenty twenty one in 0:17:15.119 --> 0:17:18.000 the Texas abortion case, but carry him through to the 0:17:18.040 --> 0:17:21.560 Alabama redistricting decisions every twenty twenty two and also a 0:17:21.600 --> 0:17:24.879 Clean Water Act decision in April twenty twenty two. But 0:17:25.040 --> 0:17:27.760 you know, June. Was remarkable about that last ruling in 0:17:27.800 --> 0:17:31.360 April twenty twenty two is that this time around Justice 0:17:31.400 --> 0:17:35.000 Kagan's opinion was actually joined not just by the two 0:17:35.040 --> 0:17:38.360 other Democratic appointees, but by Justice Roberts. And I think 0:17:38.400 --> 0:17:40.600 this is one of to me, the best pieces of 0:17:40.640 --> 0:17:44.240 evidence this is not just a you know, liberal versus 0:17:44.280 --> 0:17:49.440 conservative then, where Justice Roberts has regularly joined the first 0:17:49.560 --> 0:17:53.840 four and now three Democratic appointees in disagreeing with the 0:17:53.880 --> 0:17:57.800 other Conservatives on the shadow docket. June not because he's 0:17:57.960 --> 0:18:00.560 unsympathetic to the marriage, not because he doesn't want to 0:18:00.600 --> 0:18:03.720 reach the same bottom line, but because he objects to 0:18:03.920 --> 0:18:08.560 using the procedural device, sort of the technical procedure of 0:18:08.600 --> 0:18:10.840 the shadow docket to do it. And you know, I 0:18:10.880 --> 0:18:12.439 think what that really drives home is that this is 0:18:12.480 --> 0:18:16.200 not ideological but rather institutional, which is why I think 0:18:16.200 --> 0:18:18.680 it's not just Justice Kagan's a Chief Justice Roberts, who 0:18:18.680 --> 0:18:21.280 have been in the middle of critiquing this behavior by 0:18:21.359 --> 0:18:22.600 the other Conservatives. 0:18:22.880 --> 0:18:26.600 You write that when it comes to the shadow docket, 0:18:27.040 --> 0:18:29.679 his the Chief's votes have been the canary and the 0:18:29.680 --> 0:18:33.520 coal mine. But if anyone can stop this, isn't it 0:18:33.520 --> 0:18:34.000 the Chief. 0:18:34.600 --> 0:18:37.280 I mean, yes, to know, it's just one vote, even 0:18:37.320 --> 0:18:39.680 though it's you know, in some where ways the first 0:18:39.720 --> 0:18:42.800 vote of unequals. So I mean, as we saw June 0:18:42.920 --> 0:18:45.880 a lot in late twenty twenty and early twenty twenty one, 0:18:46.400 --> 0:18:48.720 when there are five votes on the other side, all 0:18:48.720 --> 0:18:51.960 that she really can do is defend that said. I mean, 0:18:52.000 --> 0:18:56.080 I do think that we have seen subtle but significant 0:18:56.160 --> 0:18:59.720 shifts in how the Court has been approaching emergency applications 0:19:00.080 --> 0:19:02.840 in the last you know, twelve to eighteen months. We've 0:19:02.840 --> 0:19:05.960 seen fewer of the types of ruling about which the 0:19:05.960 --> 0:19:09.119 book is most critical, where you have these, you know, 0:19:09.200 --> 0:19:14.719 sharp ideological divides without any explanation that's like radically changing 0:19:14.840 --> 0:19:17.879 the law on the ground. We're seeing more cases June 0:19:18.080 --> 0:19:20.679 where whatever the courts do and granting, we're denying. The 0:19:20.760 --> 0:19:24.879 only public dissenters are some combination of Justices Thomas, Alito 0:19:24.920 --> 0:19:27.919 and Gorsic. We're seeing cases that start on the shadow 0:19:27.960 --> 0:19:31.359 docket that the Court refuses to decide through an emergency 0:19:31.400 --> 0:19:34.639 application and instead punts to the merit's docket. That's what 0:19:34.720 --> 0:19:37.800 happened with the student loan cases from this term, for example. 0:19:38.400 --> 0:19:40.359 And I think part of what that is June is 0:19:40.359 --> 0:19:43.719 actually not necessarily about Chief Justice Roberts, but about to 0:19:43.720 --> 0:19:46.720 some degree Justices Cavanat and Barrett, who you know, I 0:19:46.720 --> 0:19:48.639 don't know if they'd ever admit it publicly, but I 0:19:48.640 --> 0:19:51.800 think have been at least to some degree chastened by 0:19:51.840 --> 0:19:54.280 some of the public criticisms of the shadow docket, and 0:19:54.400 --> 0:19:57.439 I think especially by Justin Haagan criticisms. And thus I 0:19:57.480 --> 0:20:01.520 think more moderate and more calculate in in when they 0:20:01.560 --> 0:20:03.320 are and are not going to vote fermances the release 0:20:03.400 --> 0:20:06.000 in ways that I think has slowed down what I 0:20:06.040 --> 0:20:08.480 think we're the worst excesses of this phenomenon. 0:20:09.160 --> 0:20:12.199 You mentioned just As Alido, and you write in the 0:20:12.200 --> 0:20:14.480 book about a speech he gave in twenty twenty one 0:20:15.000 --> 0:20:17.240 where he said that the shadow docket. He called it 0:20:17.280 --> 0:20:20.840 a sinister term and it portrays the court resorting to 0:20:20.920 --> 0:20:25.760 sneaky and improper methods to get its ways. But in fact, 0:20:25.880 --> 0:20:30.080 isn't that what the court has done with the shadow docket? 0:20:30.840 --> 0:20:32.760 Well, so, I mean, first, you know, I wrote a 0:20:32.880 --> 0:20:34.840 three hundred and sienty page books that tries to suggest 0:20:34.840 --> 0:20:37.920 that it's not an inaccurate description of the courts behavior. 0:20:37.960 --> 0:20:40.440 But I mean the other is I mean, I don't 0:20:40.440 --> 0:20:42.720 mean to get pedenta, but I think that's revealing. The 0:20:42.840 --> 0:20:47.560 term shadow is not, you know, inherently pejorative. Anytime you 0:20:47.680 --> 0:20:50.600 have a light source and an obstruction, you're. 0:20:50.440 --> 0:20:51.400 Gonna have shadows. 0:20:51.680 --> 0:20:54.879 The question is what happens in the shadows? And you know, 0:20:55.080 --> 0:20:56.680 we could call it whatever we want, we call it 0:20:56.720 --> 0:21:00.000 the banana docket, it would still have the same problem 0:21:00.000 --> 0:21:03.119 problematical behavior at the heart of it, which is the 0:21:03.320 --> 0:21:08.560 justices without explaining themselves, issue in rulings that dramatically upend 0:21:09.119 --> 0:21:11.240 both the law on the books and the law on 0:21:11.280 --> 0:21:13.480 the ground. And you know, I don't mean to make 0:21:13.560 --> 0:21:15.240 sort of too much of this, but if we go 0:21:15.359 --> 0:21:19.399 back to where the Court says its power comes from 0:21:19.440 --> 0:21:23.280 and it's legitimacy comes from, you know, the typical reaction, 0:21:23.440 --> 0:21:27.480 the typical defense has been that it's the Justice's ability 0:21:27.480 --> 0:21:32.320 to provide principled justifications for their decision making, not because 0:21:32.359 --> 0:21:34.600 you and I aren't necessarily going to agree with the 0:21:34.800 --> 0:21:39.240 justices principles, but at least will agree that they are principles. 0:21:39.480 --> 0:21:42.000 And the problem with the shadow docket, before you get 0:21:42.000 --> 0:21:45.639 to anything else, is that when the Court doesn't explain itself, 0:21:45.680 --> 0:21:49.480 when there's no written opinion that binds the justices and 0:21:49.520 --> 0:21:52.879 the Court in future cases, and that requires you know, 0:21:52.920 --> 0:21:56.320