Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio
Speaker 1: Late tonight. The US Supreme Court ruled churches in California
Speaker 1: can hold indoor services during the pandemic.
Speaker 2: A major decision by the Supreme Court blocking the Biden
Speaker 2: Administration's temporary ban on eviction of a deeply divided Supreme
Speaker 2: Court is allowing a Texas law that bans most abortions
Speaker 2: to remain in force.
Speaker 1: The unsigned, unexplained decisions often come late at night, but
Speaker 1: in the light of day, their impact can be profound
Speaker 1: for millions of Americans. In recent years, the Supreme Court
Speaker 1: has used its shadow docket more and more to make
Speaker 1: critical decisions with real world effects behind closed doors, on
Speaker 1: everything from abortion and religious rights to election questions and
Speaker 1: immigration policies. Decisions that just appear whenever, and that can't
Speaker 1: be analyzed or fully understood because there's no opinion to read,
Speaker 1: no oral arguments to listen to. Constitutional law Professor Stephen
Speaker 1: Vlannok of the University of Texas Law School has been
Speaker 1: studying this for years, and his new book is appropriately
Speaker 1: entitled The Shadow Docket. How the Supreme Court uses stealth
Speaker 1: rulings to amass power and undermine the Republic, and he
Speaker 1: joins me, Now, for those who may not know, it's
Speaker 1: hard to believe anyone doesn't know who listens to this show,
Speaker 1: But tell us what the shadow docket is?
Speaker 2: Sure, I mean, So the term itself was coined in
Speaker 2: twenty fifteen by Willbosity of Chicago, and you know, Will
Speaker 2: meant it, he joins me.
Speaker 1: Now, for those who may not know, it's hard to
Speaker 1: believe anyone doesn't know who listens to this show, But
Speaker 1: tell us what the shadow docket is?
Speaker 2: Sure, I mean, So the term itself was coined in
Speaker 2: twenty fifteen by Willbosity of Chicago, And you know, Will
Speaker 2: meant it really as a catch all as basically this
Speaker 2: evocative shorthand for everything that the Supreme Court does other
Speaker 2: than the big meriage decisions that come down each May
Speaker 2: and June. And so Will's basic insight was that there
Speaker 2: are you know, literally thousands of unsigned, unexplained orders that's
Speaker 2: the Supreme Court hands down every year that get barely
Speaker 2: a sort of a minuscule percentage of the attention of
Speaker 2: the sixty ish merriage rules the Court hands down, even
Speaker 2: though you know, for a fair number of those unsigned orders,
Speaker 2: they actually have pretty significant impacts, both practically and legally.
Speaker 3: So you know, the.
Speaker 2: Idea behind the term was just to say, hey, we
Speaker 2: should start paying more attentions than this slice of the
Speaker 2: Supreme Court's work, and we should you know, start by
Speaker 2: calling it something. And I guess that's where it all started.
Speaker 1: You right, that The bottom line is that most of
Speaker 1: what the Court does is behind the scenes, shrouded in obscurity,
Speaker 1: driven by norms far more than rules, and informed by
Speaker 1: the specter of deeply strategic behavior from all sides to
Speaker 1: which the public is generally not privy. Tell us what
Speaker 1: you mean by that.
Speaker 2: So one of the things that I try to do
Speaker 2: in the book for folks who may not be similiar
Speaker 2: with the history of the court is to put into
Speaker 2: context how the Supreme Court of today came to have
Speaker 2: just so much control over its docket, over the cases
Speaker 2: it hears, over when it chooses to intervene in cases.
Speaker 2: And so, you know, the idea June was to show
Speaker 2: folks how really started in the early twentieth century with
Speaker 2: the rise of what we call sircirari, the rise of
Speaker 2: the Supreme Court's discretion over its docket, the rise of
Speaker 2: the justice ability to pick and choose not just which
Speaker 2: cases they're going to take up, but which issues they are
Speaker 2: going to resolve within those cases. That that was really
Speaker 2: a font for consolidating power, that the Supreme Court, with
Speaker 2: the rise of Scirari, claim more and more authority both
Speaker 2: to decide and to not decide June in ways that
Speaker 2: are complete invisible to us. So you know, when the
Speaker 2: justices decide whether to take up a case or not,
Speaker 2: all that the public knows is what the briefs say
Speaker 2: and when the justices are going to talk about the case,
Speaker 2: But nothing about the justice deliberations, nothing about their vote
Speaker 2: is ever made public except the bottom line whether the
Speaker 2: case is taken up or not taken up. And you know,
Speaker 2: when you think about the implications of grants or denial,
Speaker 2: the Serciari and the book talks about the same sex's
Speaker 2: marriage cases from twenty fourteen twenty fifteen. It's an example
Speaker 2: of this. It's actually pretty remarkable to think about how
Speaker 2: little we know about why the justices are doing what
Speaker 2: they're doing, and even when we do know, like even
Speaker 2: when we get to the merits docket and the court,
Speaker 2: you know, has an additional round of briefing and oral
Speaker 2: argument and a written opinion. Even then, we still don't
Speaker 2: know necessarily as much as we might like to. And that's,
Speaker 2: you know, so much more than we know about the
Speaker 2: thousands and thousands of dispositions on the shadow docket.
Speaker 1: So you give a statistic that's quite stunning. Only one
Speaker 1: percent of the Court's decisions are from the merits docket.
Speaker 1: So almost ninety nine percent come from the shadow docket.
Speaker 2: That's right. And you know what's crazy about that is
Speaker 2: it's even higher if you consider that even the one
Speaker 2: percent of decisions on the merits docket only got to
Speaker 2: the merit docket because of an unsigned, unexplained order from
Speaker 2: the justices agreement takes the case up in the first place.
Speaker 2: And so you know, I wrote the book at least
Speaker 2: in part. I mean, there's the second part about what's
Speaker 2: been happening lately. But I wrote the book at least
Speaker 2: in part to really help folks understand in context that,
Speaker 2: you know, when the Supreme Court has a term like
Speaker 2: its most recent one, where at the end of the
Speaker 2: term you see all these claims about how you know,
Speaker 2: the justices didn't necessarily vote the way you might have expected,
Speaker 2: and you know, claims about how often the justices were unanimous,
Speaker 2: and claims about which justice is voted together, you know,
Speaker 2: all those claims need to be taken with a pretty
Speaker 2: healthy dose of salt, because the reality is that these
Speaker 2: are cases the justices have chosen. And so the notion
Speaker 2: that you know, this is some kind of random sample
Speaker 2: that tells us a lot of about where the court is,
Speaker 2: I think it's belied by that pretty important but often
Speaker 2: elusive insight.
Speaker 1: How often is the shadow docket a harbinger of what's
Speaker 1: to come on the merits docket? And how often do
Speaker 1: those emergency orders actually end up being the final decision
Speaker 1: in the case.
Speaker 2: Sure, I mean, so, you know, we've been talking mostly
Speaker 2: so far about the dominant by volume piece of the
Speaker 2: shadow docket, which is grants or denials of sercirari. So
Speaker 2: there's another piece of the shadow docket, which is grants
Speaker 2: or denials of emergency relief. This is when while a
Speaker 2: case is working his way through the lower courts, a
Speaker 2: party goes to the Supreme Court and says, hey, you know,
Speaker 2: we would like you to change the status quo right now,
Speaker 2: even before the case comes back to you. And you know, Jude,
Speaker 2: and what's remarkable about emergency relief is that there's been
Speaker 2: a completely revolutionary shift in when and how the justices
Speaker 2: have been granted an emergency relief in the last six
Speaker 2: seven years. You know, Hill, about ten years ago, you
Speaker 2: only tended to see the full court granting or denying
Speaker 2: emergency release in capital cases where there was like a
Speaker 2: prisoner who was trying to have his claims heard before
Speaker 2: he was executed, or a state was trying to have
Speaker 2: a stay imposed by a lower court unfrozen by the justices.
Speaker 2: What we see in the last six seven years, June
Speaker 2: is now almost every major policy dispute you know, gets
Speaker 2: to the Supreme Court first as an emergency application, where
Speaker 2: either the party challenge and the policy wants the policy
Speaker 2: block pending Supreme Court review, or the government responsible for
Speaker 2: the policy wants it unblocked. And you know what's I
Speaker 2: think so remarkable about that shift is first it's happened
Speaker 2: completely in the dark, without any you know, public recognition
Speaker 2: or acknowledgment by the justices that there's even been a shit.
Speaker 2: But second, all the while, the Court has continued its
Speaker 2: norm of not explaining itself, so that you have orders
Speaker 2: that are producing massive effects on the ground, allowing President
Speaker 2: Trump to build his border wall, blocking President Biden's vaccination
Speaker 2: mandates for large employers, to allow in Texas's controversial six
Speaker 2: weeks abortion band to go into effect, allowing Alabama to
Speaker 2: use on lawful congressional districts in last year's midterms. And
Speaker 2: these orders have no rationale. And so Jane, this is
Speaker 2: I think where your question's going. You know, it would
Speaker 2: be one thing if you know the ruling of the
Speaker 2: emergency stage, if all the court was doing was saying, listen,
Speaker 2: we're eventually going to rule for this party over that party,
Speaker 2: so we might as well just do it now and
Speaker 2: get it out of the way. But that's absolutely not
Speaker 2: what's happening. I mean, we've seen a number of cases
Speaker 2: this term where how the court ruled at the emergency
Speaker 2: application stage ended up not being predictive of what the
Speaker 2: court did on the merits in the Alabama redistrict. In
Speaker 2: case last year, you know, in an unsigned, unexplained order
Speaker 2: of five four, court let Alabama use maps that lower
Speaker 2: courts said we're unlawful. This year, a five four majority
Speaker 2: of said, oh wait, the lower courts were right, they
Speaker 2: are unlawful. Same thing with President Biden's immigration enforcement priority.
Speaker 2: You know, last year the Court refused to freeze a
Speaker 2: lower court injunction against those priorities. This year the Court
Speaker 2: reversed that injunction. So part of the problem with the
Speaker 2: book document is not just the explosion and when and
Speaker 2: how the justices are using you know, unsigned unexplained orders
Speaker 2: granting emergency relief in ways it has profound impacts on
Speaker 2: the ground, but also that it turns out those orders
Speaker 2: are not predictive, and so the fact that the justices
Speaker 2: are not explaining themselves, you know, at the emergency application
Speaker 2: stage is all the more problematic when they seem to
Speaker 2: be changed in their minds at the merriage stage.
Speaker 1: You know, the increase in the last six to seven
Speaker 1: years is under the Roberts Court. Do you think that
Speaker 1: the justices are deliberately doing this, thinking this through or
Speaker 1: they would say, well, these emergency things come up and
Speaker 1: we don't take that many cases anymore, which is another problem.
Speaker 1: What do you think their explanation would be.
Speaker 2: I mean, you know, Justice Alito at least has tried
Speaker 2: to proffer public explanation, and he's been very in line
Speaker 2: with the you know, don't blame us, we don't make
Speaker 2: these applications up, people come to us aster a relief,
Speaker 2: and so you know, from Justice Alito's perspective, it's very reactive,
Speaker 2: where all the justice are doing is just reacting one
Speaker 2: at a time. And you know, Dune, that explanation, I
Speaker 2: think would have made sense to a point, right, there
Speaker 2: was a real flurry of applications from the Trump administration
Speaker 2: in twenty seventeen and twenty eighteen where you know, maybe
Speaker 2: you could say, yeah, the Justice just never really sat
Speaker 2: down and thought about it. The problem is the book
Speaker 2: documents is that by the time you get to all
Speaker 2: of the COVID related cases in the fall of twenty
Speaker 2: twenty and the winter twenty twenty one, you have a
Speaker 2: court that is at this point acting willfully in the
Speaker 2: sense that the justices are taking applications for emergency relief
Speaker 2: and using those to resolve issues that were pending before
Speaker 2: them in other cases on their merits docket. And so
Speaker 2: it's really hard by the time you get to that
Speaker 2: point to say this was all just the justices reacting,
Speaker 2: as opposed to the justices picking you know, emergency applications
Speaker 2: as the place to make these rulings as the place
Speaker 2: to have this impact versus the merriage docket. That's part
Speaker 2: of why, I mean, the book really does try to
Speaker 2: proceed chronologically through the last six years, because I think
Speaker 2: if you see how the pattern builds, you know, I
Speaker 2: think it really does become clear why even the more
Speaker 2: benign explanations that might have excused some of the Court's
Speaker 2: conducts in twenty seventeen, twenty eighteen, twenty nineteen start to
Speaker 2: fall apart when you get to late twenty twenty and
Speaker 2: early twenty twenty one.
Speaker 1: So, I like the subtitle of chapter four is how
Speaker 1: the Trump administration blew up the shadow docket. So in
Speaker 1: just four years, the Trump Justice Department asked the Court
Speaker 1: for emergency relief forty one times. That strategy worked for
Speaker 1: the Trump administration, didn't it It did?
Speaker 2: I mean, and we should put that stats in context.
Speaker 2: I mean, so forty one times in four years compared
Speaker 2: to the Bush bomb administrations, which you know, June two,
Speaker 2: very different to term presidencies that across sixteen years had
Speaker 2: only gone to the Court eight times. And so it's
Speaker 2: really it's like a twenty fold increase in how often
Speaker 2: the federal government was going to the Supreme Court for
Speaker 2: them mergency release. And as you say, the Court was
Speaker 2: largely acquiescent. And you know, part of what's frustrating about
Speaker 2: this entire topic is because the justices are never explaining themselves,
Speaker 2: were really left to try to sort of put their
Speaker 2: best arguments, you know, into their mouths and speculate and so,
Speaker 2: you know, one common defense of the Court's aggressive interventions
Speaker 2: during the Trump administration was that lower courts had sort
Speaker 2: of run amok with nationwide injunctions and that the Court
Speaker 2: was stepping in to basically mitigate the effects of nationwide
Speaker 2: injunctions to which the justices were opposed, you know, respecting
Speaker 2: the deference they thought the president was entitled to when
Speaker 2: it comes to say, immigration policy. But the problem with
Speaker 2: that argument is if you look fast forward to the
Speaker 2: Biden administration, it doesn't hold up because they administration has
Speaker 2: been subject to a similar flood of nationwide injunctions, including
Speaker 2: in immigration cases. The Biden administration has gone to the
Speaker 2: court multiple times in immigration cases for the same emergency
Speaker 2: relief that the Trump administration got. The Court has denied
Speaker 2: emergency relief in those cases, and yet then the Biden
Speaker 2: administration wins those cases on the merits. So, you know, June,
Speaker 2: it's really i think it complicates the entire story that
Speaker 2: there's sort of no spoken, no written defense by the
Speaker 2: justices of the behavior. But one of the things I
Speaker 2: really try to do in the book is present as
Speaker 2: much evidence as possible and as much data as possible,
Speaker 2: basically to show that like what would otherwise appear to
Speaker 2: be plausible benign explanations for the justices behavior. Just don't
Speaker 2: describe the entire data set, and don't hold up when
Speaker 2: you scale out from any one specific subset of cases.
Speaker 1: You mentioned the COVID case is the KATODOCTA cases during COVID,
Speaker 1: and you have a whole chapter devoted to this. But
Speaker 1: tell us how you think the Court used the shadow
Speaker 1: DOCA to expand religious liberty rights.
Speaker 2: Sure, I mean, so you know, I think folks will
Speaker 2: remember that, starting especially with Justice Barrett's confirmation in late
Speaker 2: October twenty twenty, there was a really sharp increase in
Speaker 2: the Court's intervention to block COVID mitigation measures, especially in
Speaker 2: Blue states on religious liberty grounds, starting the night before
Speaker 2: Thanks Given. And this was a shift. I mean, there
Speaker 2: had been June, as you probably remember, a couple of
Speaker 2: cases in the summer of twenty twenty where the Court
Speaker 2: had refused to grant emergency relief to block California and
Speaker 2: Nevada restrictions over four decents, where to Justice Roberts had
Speaker 2: joined the four Democratic appointees to deny relief. You know,
Speaker 2: now Roberts is not the fifth vote, he's the fourth.
Speaker 2: And so almost overnight after Justice Barrett joins the court,
Speaker 2: we start seeing really aggressive orders blocking New York, California,
Speaker 2: New Jersey, Colorado, COVID restrictions on religious liberty grounds. And
Speaker 2: this all culminates with a decision in April twenty twenty
Speaker 2: one called Tandon versus Newsom. This time around, the court
Speaker 2: actually wrote something, so there was a majority Pitton in
Speaker 2: tand in. And one of the things the Court does
Speaker 2: in Tandon is it embraces what scholars call the most
Speaker 2: favored nation theory of the free exercise clause, the idea
Speaker 2: that when you have any kind of law of general applicability,
Speaker 2: a zone in regulation accur to you, I mean anything
Speaker 2: that applies to all. If the law makes any exceptions
Speaker 2: for secular businesses, it must also make an exception for
Speaker 2: religious ones. And the Court used that theory, which it
Speaker 2: had never embraced before, to block California's restrictions on how
Speaker 2: many different people you could have in a private home.
Speaker 2: So California had said, you know, you can only have
Speaker 2: people from three different households in any private home at
Speaker 2: any one time as one of its COVID restrictions. And
Speaker 2: the Court says, but because there are secular exceptions, so
Speaker 2: that there must be a religious exception, and therefore blocked
Speaker 2: the California law June. That's remarkable in two respects. First,
Speaker 2: everyone agrees, even the folks who liked that decision agreed
Speaker 2: that that's a new principle of free exercise jurisprudence, that
Speaker 2: the Court made law in tandon in a way that
Speaker 2: at least generally is not supposed to on the shadow docket.
Speaker 2: But second, the specific relief that the applicants had sought
Speaker 2: in tent was an injunction pendent appeal, the most extreme
Speaker 2: form of emergency relief, where what they're supposed to show
Speaker 2: is that their right to relief was quote indisputably clear unquote.
Speaker 2: And here we have the Supreme Court staying it was
Speaker 2: indisputably clear that the principle that we had never previously
Speaker 2: adopted was violated by the state of California. That's really
Speaker 2: how far things have gone on the shadow docket by
Speaker 2: April twenty twenty one.
Speaker 1: Obviously this has not passed the attention of the Supreme
Speaker 1: Court justices. Has Justice Elena Kaye been the loudest voice
Speaker 1: in calling out the shadow docket?
Speaker 2: She has, I mean, so Justice Kagan has been very
Speaker 2: critical of the conservative justice behavior on the shadow docket,
Speaker 2: starting with her descent in September twenty twenty one in
Speaker 2: the Texas abortion case, but carry him through to the
Speaker 2: Alabama redistricting decisions every twenty twenty two and also a
Speaker 2: Clean Water Act decision in April twenty twenty two. But
Speaker 2: you know, June. Was remarkable about that last ruling in
Speaker 2: April twenty twenty two is that this time around Justice
Speaker 2: Kagan's opinion was actually joined not just by the two
Speaker 2: other Democratic appointees, but by Justice Roberts. And I think
Speaker 2: this is one of to me, the best pieces of
Speaker 2: evidence this is not just a you know, liberal versus
Speaker 2: conservative then, where Justice Roberts has regularly joined the first
Speaker 2: four and now three Democratic appointees in disagreeing with the
Speaker 2: other Conservatives on the shadow docket. June not because he's
Speaker 2: unsympathetic to the marriage, not because he doesn't want to
Speaker 2: reach the same bottom line, but because he objects to
Speaker 2: using the procedural device, sort of the technical procedure of
Speaker 2: the shadow docket to do it. And you know, I
Speaker 2: think what that really drives home is that this is
Speaker 2: not ideological but rather institutional, which is why I think
Speaker 2: it's not just Justice Kagan's a Chief Justice Roberts, who
Speaker 2: have been in the middle of critiquing this behavior by
Speaker 2: the other Conservatives.
Speaker 1: You write that when it comes to the shadow docket,
Speaker 1: his the Chief's votes have been the canary and the
Speaker 1: coal mine. But if anyone can stop this, isn't it
Speaker 1: the Chief.
Speaker 2: I mean, yes, to know, it's just one vote, even
Speaker 2: though it's you know, in some where ways the first
Speaker 2: vote of unequals. So I mean, as we saw June
Speaker 2: a lot in late twenty twenty and early twenty twenty one,
Speaker 2: when there are five votes on the other side, all
Speaker 2: that she really can do is defend that said. I mean,
Speaker 2: I do think that we have seen subtle but significant
Speaker 2: shifts in how the Court has been approaching emergency applications
Speaker 2: in the last you know, twelve to eighteen months. We've
Speaker 2: seen fewer of the types of ruling about which the
Speaker 2: book is most critical, where you have these, you know,
Speaker 2: sharp ideological divides without any explanation that's like radically changing
Speaker 2: the law on the ground. We're seeing more cases June
Speaker 2: where whatever the courts do and granting, we're denying. The
Speaker 2: only public dissenters are some combination of Justices Thomas, Alito
Speaker 2: and Gorsic. We're seeing cases that start on the shadow
Speaker 2: docket that the Court refuses to decide through an emergency
Speaker 2: application and instead punts to the merit's docket. That's what
Speaker 2: happened with the student loan cases from this term, for example.
Speaker 2: And I think part of what that is June is
Speaker 2: actually not necessarily about Chief Justice Roberts, but about to
Speaker 2: some degree Justices Cavanat and Barrett, who you know, I
Speaker 2: don't know if they'd ever admit it publicly, but I
Speaker 2: think have been at least to some degree chastened by
Speaker 2: some of the public criticisms of the shadow docket, and
Speaker 2: I think especially by Justin Haagan criticisms. And thus I
Speaker 2: think more moderate and more calculate in in when they
Speaker 2: are and are not going to vote fermances the release
Speaker 2: in ways that I think has slowed down what I
Speaker 2: think we're the worst excesses of this phenomenon.
Speaker 1: You mentioned just As Alido, and you write in the
Speaker 1: book about a speech he gave in twenty twenty one
Speaker 1: where he said that the shadow docket. He called it
Speaker 1: a sinister term and it portrays the court resorting to
Speaker 1: sneaky and improper methods to get its ways. But in fact,
Speaker 1: isn't that what the court has done with the shadow docket?
Speaker 2: Well, so, I mean, first, you know, I wrote a
Speaker 2: three hundred and sienty page books that tries to suggest
Speaker 2: that it's not an inaccurate description of the courts behavior.
Speaker 2: But I mean the other is I mean, I don't
Speaker 2: mean to get pedenta, but I think that's revealing. The
Speaker 2: term shadow is not, you know, inherently pejorative. Anytime you
Speaker 2: have a light source and an obstruction, you're.
Speaker 3: Gonna have shadows.
Speaker 2: The question is what happens in the shadows? And you know,
Speaker 2: we could call it whatever we want, we call it
Speaker 2: the banana docket, it would still have the same problem
Speaker 2: problematical behavior at the heart of it, which is the
Speaker 2: justices without explaining themselves, issue in rulings that dramatically upend
Speaker 2: both the law on the books and the law on
Speaker 2: the ground. And you know, I don't mean to make
Speaker 2: sort of too much of this, but if we go
Speaker 2: back to where the Court says its power comes from
Speaker 2: and it's legitimacy comes from, you know, the typical reaction,
Speaker 2: the typical defense has been that it's the Justice's ability
Speaker 2: to provide principled justifications for their decision making, not because
Speaker 2: you and I aren't necessarily going to agree with the
Speaker 2: justices principles, but at least will agree that they are principles.
Speaker 2: And the problem with the shadow docket, before you get
Speaker 2: to anything else, is that when the Court doesn't explain itself,
Speaker 2: when there's no written opinion that binds the justices and
Speaker 2: the Court in future cases, and that requires you know,
Speaker 2: the Court to actually treat similar cases with different partisan
Speaker 2: balances similarly, then it looks like the justices are just
Speaker 2: in as partisans, and it looks like voting you know,
Speaker 2: for this day and against that stay reflect no judicial
Speaker 2: philosophy other than one on one team to win in
Speaker 2: the other team to lose. And that's really, I think
Speaker 2: an impression that the Court can ill afford to perpetuate,
Speaker 2: and maybe part of why we've seen injustices other than Alido,
Speaker 2: you know, quietly tweakingly some of their behaviors. On this point, Steve.
Speaker 1: I want to turn for a moment to this term's
Speaker 1: merits docket. Some people are looking at some liberal wins,
Speaker 1: like the Court allowing the Biden administration to set immigration policy,
Speaker 1: rejecting challenges to the Voting Rights Act and the Native
Speaker 1: American Welfare Act, et cetera, and saying, maybe this court
Speaker 1: is not as conservative as we thought. But in the
Speaker 1: final days of the term, the conservative majority issued some
Speaker 1: monumental decisions, eliminating affirmative action, striking down Biden's student loan plan,
Speaker 1: and carving out a first an an exception to antidiscrimination laws.
Speaker 1: So is this court just as conservative as we thought
Speaker 1: it was?
Speaker 2: Yes? And I've written a couple of things about how,
Speaker 2: you know, I really do think that efforts to portray
Speaker 2: the court is moderate really are missing the forest for
Speaker 2: one or two misdescribed trees. But Dude, I actually think
Speaker 2: this dovetails with the broader point of the book, which is,
Speaker 2: if the justices are taken up a case like let's say,
Speaker 2: us versus Texas Right, the case where Texas challenged the
Speaker 2: Biden administration's immigration enforcement priority, and what the justices actually
Speaker 2: hold is that Texas lacked stand in right. That's a
Speaker 2: technical and mostly inscrutable hole band that doesn't really tell
Speaker 2: us much ideologically, and yet it's portrayed as a liberal
Speaker 2: victory because President Biden won and the state of Texas
Speaker 2: lost on a procedural issue that has no partisan balance whatsoever.
Speaker 2: And this is a case that the Court chose to
Speaker 2: take in the first place. So I am very wary
Speaker 2: of effort to sort of draw broad claims about the
Speaker 2: Court by aggregating the data of the merits docket, when
Speaker 2: the merits docket is carefully cultivated by the justices themselves.
Speaker 2: But second, when efforts to make those claims treats all
Speaker 2: dispositions similarly. When we all know June that there's a
Speaker 2: huge difference between staying you know, we're throwing out this
Speaker 2: case because of a procedural defect, versus we're throwing out
Speaker 2: this case because we don't think that you have any
Speaker 2: possible claim on the merits. And so when you see
Speaker 2: statistics about how often a particular justice is in the
Speaker 2: majority or how often the court was unanimous. I would
Speaker 2: just sort of shout from the rooftops, Well, keep in
Speaker 2: mind that those statistics are deeply misleading and aren't actually
Speaker 2: telling you what you think they're telling you.
Speaker 1: Speaking of deeply misleading statistics, the Chief was in the
Speaker 1: majority and divided cases eighty six percent of the time,
Speaker 1: second only to Justice Brett Kavanaugh, who was in the
Speaker 1: majority ninety percent of the time. And so some commentators
Speaker 1: have said, basically, the Chief is back in charge. Do
Speaker 1: you buy that?
Speaker 2: Think two things are true. I think reports of his
Speaker 2: demise were greatly exaggerated, and I think reports of his
Speaker 2: resurgence are greatly exaggerated. The reality is that I think
Speaker 2: the Chief has an ability to do exactly one thing.
Speaker 2: And so this term we saw a number of cases
Speaker 2: Jude where he assigned, you know, the majority opinion in
Speaker 2: a controversial case to himself, which left it for him
Speaker 2: to basically steer the court in the direction he wanted
Speaker 2: to steer it. What that says to me is not
Speaker 2: that the Chief has somehow regained power that he has lost,
Speaker 2: but rather that, you know, the cases that the court
Speaker 2: heard this term lent themselves to that kind of investment
Speaker 2: versus the cases from last turn. And so, you know,
Speaker 2: folks look very very carefully at the fact that the
Speaker 2: Chief was sort of concurring separately in Dobbs, that's the
Speaker 2: case that was perfectly set up to split him from
Speaker 2: other conservatives, whereas almost none of the cases from this
Speaker 2: term were. So, you know, I guess it goes back
Speaker 2: to the same phenomenon. And really, June, it's the problem
Speaker 2: with the heart of the book, which is that the
Speaker 2: way we had been conditioned to think about talk about
Speaker 2: the court, to assess the Court at the end of
Speaker 2: the term buys into sort of necessarily incorporate fairly profound
Speaker 2: skews that the Court has very carefully developed over the
Speaker 2: years and that are sort of hidden in play in
Speaker 2: sight in the work of the Supreme Court.
Speaker 1: The liberals wrote some strong and impassioned dissents at the
Speaker 1: end of the term, and the Chief in the last
Speaker 1: line of his final opinion of the term said, reasonable
Speaker 1: minds may disagree in fact three do, but do not
Speaker 1: mistake these heartfelt disagreements for disparagement. It's important that the
Speaker 1: public not being misled either. Any such perception would be
Speaker 1: harmful to this institution in our country. What was he
Speaker 1: trying to say there?
Speaker 2: The Chief knows that it's the last opinion of the term,
Speaker 2: and I think it's really remarkable that that's where he
Speaker 2: chose to add. You know, I think there's almost nothing
Speaker 2: that John Roberts says by accident, and that he chose
Speaker 2: to end there, to me, was an effort to say
Speaker 2: that there is too much public criticism the Court right
Speaker 2: now that is sort of delegitimizing as opposed to Stuffsn't
Speaker 2: it right? That to him, there's a distinction between legitimate
Speaker 2: criticism of the Court and illegitimate crism in the court.
Speaker 2: And I think we've heard that from Justice Alito as well,
Speaker 2: especially in his I'll put in quotation marks interview with
Speaker 2: the Wall Street Journal back in April. And I guess, Jude,
Speaker 2: what really sort of strikes me about that is, you know,
Speaker 2: to sort of tie it back to one of the
Speaker 2: themes of the book, because it gets to this idea
Speaker 2: that the Court has become its own keeper of its legitimacy,
Speaker 2: that the Court has decided for itself, that like it
Speaker 2: is autonomous of the political branches, it is autonomous of
Speaker 2: the people. And one of the things that the book
Speaker 2: tries really hard to make clear to folks. For better
Speaker 2: or for worse. You know, we can debate the wisdom
Speaker 2: of this till the cows come home.
Speaker 3: But this is actually a relatively new development that you know,
Speaker 3: for the better part of two hundred years, the Supreme Court,
Speaker 3: all its worth, was part of this pretty healthy, robust
Speaker 3: inner branch dynamic where the justices were routinely in conversation.
Speaker 2: With the executive branch and the legislative branch, about what
Speaker 2: their docket should look like, about what their budget should
Speaker 2: look like, even their building. I mean, the court sat
Speaker 2: in the capitol till nineteen thirty five. And you know,
Speaker 2: I think part of how we got to where we
Speaker 2: are today, June is this is a court that, for
Speaker 2: better or for worse, does not believe it is accountable
Speaker 2: to the political branches, and does not believe that it
Speaker 2: ought to be accountable to the political branches. And you know,
Speaker 2: part of the problem is that the political branches aren't
Speaker 2: doing anything to push back where you know, what used
Speaker 2: to be a pretty healthy understanding the part of the
Speaker 2: job of the political branches was to check the courts.
Speaker 2: Has I think been overtaken by the you know, sort
Speaker 2: of polarization where now you know, everyone perceives any attack
Speaker 2: on the Court as partisan as Democrats attacking or republican court.
Speaker 2: And I think that's a really big part of how
Speaker 2: we got to where we are. And frankly, June, I
Speaker 2: also think it's part of how we get out of this,
Speaker 2: which is trying to figure out how to restore public
Speaker 2: discourse about the Court that talks about the Court as
Speaker 2: an institution, that looks at the Court as an institution,
Speaker 2: that evaluates the Court as an institution, so that when
Speaker 2: there are institutional behaviors that seem worthy of reproach and reform,
Speaker 2: it's not just the folks in the minority clamoring for
Speaker 2: those reforms, but everybody, because we all ought to be
Speaker 2: invested in having a healthy Supreme Court. And that is
Speaker 2: a huge part of why I wrote this book and
Speaker 2: a huge part of what I hope appeals to folks
Speaker 2: as they read the book.
Speaker 1: Your book is a fascinating read, Steve, and so well researched.
Speaker 1: Of course. That's Professor Steven Vladik of the University of
Speaker 1: Texas Law School. His book is called The Shadow Docket,
Speaker 1: How the Supreme Court uses stealth rulings to amass power
Speaker 1: and undermine the Republic. And that's it for this edition
Speaker 1: of The bloom Berg Law Show. Remember you can always
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Speaker 1: at ten pm Wall Street Time. I'm June Grosso and
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