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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 1: There's been a lot of criticism from all quarters, including

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Speaker 1: Supreme Court justices, of the Court's emergency docket, often called

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Speaker 1: the shadow docket because of its lack of transparency. Often

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Speaker 1: the majority doesn't include their reasoning when issuing these orders.

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Speaker 1: Well now, Federal Appeals Court judges are budding heads about

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Speaker 1: the role of the emergency docket and how much weight

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Speaker 1: lower courts should give those orders, with one judge saying

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Speaker 1: it forced lower courts to divine binding doctrine, at another

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Speaker 1: lamenting his colleague's rhetorical assault on the High Court. My

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Speaker 1: guest is constitutional law expert David super, a professor at

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Speaker 1: Georgetown Law. David, everyone knows that judges have to follow

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Speaker 1: Supreme Court precedent. Are the Court's decisions on the emergency

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Speaker 1: docket any different?

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Speaker 2: They can be different if they aren't explained, because the

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Speaker 2: lower courts are bound by the Supreme Court's holding. But

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Speaker 2: if it's only holding is that uninjunction in this case

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Speaker 2: or that is stayed, and they don't give us any reasoning,

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Speaker 2: then the lower courts are not bound by reasoning that

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Speaker 2: they are speculating they're bound by what the court tells

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Speaker 2: us to decide cases.

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Speaker 1: And we've seen before it. I think we talked about

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Speaker 1: pushback from lower court judges complaining about the lack of guidance.

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Speaker 1: One judge wrote that recent emergency docket rulings regarding grant

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Speaker 1: terminations have not been models of clarity and have left

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Speaker 1: many issues unresolved. But now we have this disagreement about

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Speaker 1: the emergency docket coming from appellet judges on the Fourth Circuit.

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Speaker 1: So this wasn't a case related to tell us what

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Speaker 1: the majority, the Ibak majority decided in that case.

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Speaker 2: Yeah, the case was about an injunction limiting Doz's access

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Speaker 2: to extremely sensitive social security information on you and me

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Speaker 2: and hundreds of millions of other people. And the Supreme

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Speaker 2: Court had previously held that an earlier lower court injunction

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Speaker 2: in that case could not be enforced until appeables were

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Speaker 2: fully exhausted up to the Supreme Court. And so what

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Speaker 2: the majority in the Fourth Circuit decided was that it

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Speaker 2: was going to send the case back down to the

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Speaker 2: district court. It was not going to purport to reinstate

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Speaker 2: an injunction because the Supreme Court had pretty clearly said

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Speaker 2: it couldn't do that.

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Speaker 1: That's the majority. And this prompted a rebuke from Judge

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Speaker 1: James Wynn, who was joined by four other judges, and

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Speaker 1: he argued that his colleagues were treating Supreme Court emergency

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Speaker 1: docket orders as precedent. They must follow quote to treat

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Speaker 1: interim orders as binding precedent abandons our long held jurisprudence

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Speaker 1: of deciding constitutional law through reasoned opinions. Is this just

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Speaker 1: utter defiance.

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Speaker 2: It's absolutely not defiance. It's actually a very traditionalist and

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Speaker 2: the Supreme Court has lectured us often on the importance

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Speaker 2: of following the rules that were in place when the

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Speaker 2: Constitution was adopted. And this is, although it doesn't call

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Speaker 2: itself originalists, this is originalist in that courts have two

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Speaker 2: entirely different functions that they often perform in the same case.

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Speaker 2: They decide the rights of the parties before them, and

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Speaker 2: they make precedent for the future. Those are different functions,

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Speaker 2: and nobody, not the concurring justices, not Justices Jackson and

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Speaker 2: so Tom, Nobody questions that the Supreme Court can decide

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Speaker 2: the rights of the parties before it on the shadow docket.

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Speaker 2: The question is whether when it issues an order for

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Speaker 2: the parties in front of it without an opinion or

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Speaker 2: without a meaningful opinion, if that should be also treated

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Speaker 2: as president and the history is that court's issue opinions

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Speaker 2: to tell us why they're deciding things. Often the parties

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Speaker 2: are making half a dozen different arguments and knowing that

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Speaker 2: that party one doesn't tell you which of those six

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Speaker 2: arguments was persuasive with the court. And if we just

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Speaker 2: guess as to why the court did what it did,

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Speaker 2: will often be creating a law out of thin air,

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Speaker 2: playing ventriloquist, which is not the lower court's job. It's

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Speaker 2: not any of our jobs.

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Speaker 1: In a case where the Supreme Court allowed President Trump

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Speaker 1: to temporarily remove three democratic members of the Consumer Product

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Speaker 1: Safety Commission, the Court stated that while interim orders are

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Speaker 1: not conclusive as to the merits, they inform how a

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Speaker 1: court should exercise its equitable discretion in like cases. What

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Speaker 1: does that mean?

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Speaker 2: Well, there's a lot unpacked there. When they say it

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Speaker 2: doesn't decide the merits of that case, it means that

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Speaker 2: the party's rights are not finally decided. The parties can

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Speaker 2: continue to litigate the lower court and come up to

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Speaker 2: the Supreme Court. So that part is well understood, then

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Speaker 2: the question is what kind of precedent is it? And

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Speaker 2: the Justice there says that it informs what the lower

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Speaker 2: courts can do, but only in like cases. When you

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Speaker 2: don't have much of an opinion from the Supreme Court,

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Speaker 2: it's very hard to know what like cases are, and

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Speaker 2: it can inform only to the extent that it provides information.

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Speaker 2: And if they don't tell us what's important, then it's

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Speaker 2: very hard for lawyers or judges or voters to know

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Speaker 2: how they are to change what they're doing. Also critical

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Speaker 2: here that the Justice mentions equitable discretion. Equity is not

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Speaker 2: a system of rigid rules. Equity is a system of

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Speaker 2: judges applying judgment, and that judgment should be consistent with

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Speaker 2: the general principles of our system. But it's never a

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Speaker 2: rigid process, and so asking lower court judges to act

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Speaker 2: rigidly in an equitable case is like asking for a

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Speaker 2: ocean without any water. It doesn't work that way.

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Speaker 1: Speaking of water, Judge J. Harvey Wilkinson, the third who's

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Speaker 1: Reagan appointee, said in his concurring opinion that Judge Wind's

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Speaker 1: warning creeps too near the water's edge of defiance for

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Speaker 1: my comfort, and he described it as a rhetorical assault

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Speaker 1: upon the Supreme Court. Then Win came back and his

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Speaker 1: opinion and said, if anything creeps towards the water's edge,

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Speaker 1: it's the notion that lower courts must divine binding doctrine

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Speaker 1: from orders that say nothing of the kind. It does

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Speaker 1: seem to put lower courts in a terrible position.

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Speaker 2: Well, it does. And there are two distinct criticisms of

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Speaker 2: the shadow docket that really need to be separated here.

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Speaker 2: One is about inputs and the others about outputs. There

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Speaker 2: are a lot of criticisms which I share that they're

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Speaker 2: taking too many cases and they're not getting the benefit

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Speaker 2: of lower court decisions, of a fully developed record oral arguments,

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Speaker 2: and that that can lead to them making bad decisions,

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Speaker 2: decisions that are much worse than the same court would

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Speaker 2: have made if it had proper inputs. But there's a

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Speaker 2: second distinct complaint about the outputs, that they don't give

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Speaker 2: us much in the way of opinions. And that's what

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Speaker 2: we're arguing about here. I suspect Judge when would just

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Speaker 2: assume the Supreme Court take fewer cases on the shadow

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Speaker 2: do actually, suspect Judge Wilkinson would agree with that. But

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Speaker 2: if they're going to take the case and decide it

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Speaker 2: and expect it to be treated as president, they need

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Speaker 2: to write opinions telling us what the precedent is, allowing

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Speaker 2: us to figure out what cases are governed by it

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Speaker 2: and what are not. And there's a very old tradition

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Speaker 2: of lower court judges criticizing, often very directly, Supreme Court

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Speaker 2: decisions and complaining that Supreme Court decisions don't give them

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Speaker 2: proper justification. There's a very famous case by Judge learned Hand,

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Speaker 2: one of the most respected district judges of the twentieth century,

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Speaker 2: Nobody's Liberal, complaining about a decision that the Supreme Court

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Speaker 2: did and basically saying their rationale is so thin, I'm

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Speaker 2: not going to apply it as precedent because I don't

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Speaker 2: know how. And that's in all the books I teach

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Speaker 2: it every year in my course. That is certainly not

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Speaker 2: a disreputable opinion.

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Speaker 1: And yet Justice Neil Gore such scolded lower court judges

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Speaker 1: for not following Supreme Court rulings, saying lower court judges

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Speaker 1: may sometimes disagree with this Court's decisions, but they are

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Speaker 1: never free to defy them. But other justices are critical

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Speaker 1: of the shadow docket themselves. For example, there was a

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Speaker 1: recent appearance by liberal Justice Katanji Brown Jackson and conservative

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Speaker 1: Justice Brett Kavanaugh. She said that the Court's increasing willingness

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Speaker 1: to intervene before lower courts fully resolved disputes creates a

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Speaker 1: warp system. But he said he didn't relish the increase

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Speaker 1: in emergency petitions, but they're required to take action one

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Speaker 1: way or another when emergency relief is sought. I mean,

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Speaker 1: are they being pushed into this, you know, by the

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Speaker 1: Trump administration's actions that are being held back by lower courts.

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Speaker 2: Well, the Trump administration is a revolutionary administration, and you

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Speaker 2: can be happy or unhappy about that, but they are

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Speaker 2: trying to overturn the way things have been done for

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Speaker 2: many years, in some cases for the whole history of

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Speaker 2: the Republic. And if you like it, you call it

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Speaker 2: draining the swamp. And if you don't like it, you

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Speaker 2: call it lawless. But they're doing a lot of radical things.

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Speaker 2: It's no surprise that when you put forward a radical

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Speaker 2: program you get sued a lot. Franklin Roosevelt was sued

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Speaker 2: a great deal and he put forward a radical program.

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Speaker 2: Abraham Lincoln was sued a lot when he put forward

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Speaker 2: a radical program, so we shouldn't be surprised by that.

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Speaker 2: And saying that the Trump administration is being burdened in

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Speaker 2: a way that priorate administrations that followed our political and

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Speaker 2: governance customs were not really isn't a very persuasive argument.

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Speaker 2: It is true the Supreme Court is getting many, many

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Speaker 2: more petitions from the Trump administration than priorate administrations filed,

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Speaker 2: but that really is attributable to the Court itself. It

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Speaker 2: grants a great many of them, which causes more to

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Speaker 2: be filed. I'm aware of cases in prior administrations where

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Speaker 2: there was a strong desire to file one and the

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Speaker 2: Solicitor General basically said, we don't get to do this

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Speaker 2: very often, and this isn't one of the few cases

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Speaker 2: I'm willing to do it on. There's no one saying

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Speaker 2: that in this administration, they just file, file, file, And.

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Speaker 1: Actually, Justice so to Major during an appearance last Thursday,

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Speaker 1: said the Court had itself to blame for the flood

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Speaker 1: of emergency appeals, and she pointed to what you were

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Speaker 1: just saying. Stay with me, David. Coming up next, we'll

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Speaker 1: talk about the rumors that Justice Alito is going to retire.

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Speaker 1: You're listening to Bloomberg. Justice Sonya so To Mayor has

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Speaker 1: been on the road making public appearances speaking about her

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Speaker 1: latest children's book and her experiences as a Supreme Court Justice.

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Speaker 1: So To major took an unusually public public and pointed

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Speaker 1: swipe at fellow Justice Brett Kavanaugh while speaking at the

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Speaker 1: University of Kansas Law School. It related to a September

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Speaker 1: eighth emergency order issued on the shadow docket, where the

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Speaker 1: justices paused lower court rulings that had temporarily barred immigration

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Speaker 1: agents from targeting people based solely on their language, occupation, race,

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Speaker 1: or presence at locations such as car washes or bus stops.

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Speaker 1: In a concurrence, Justice Brett Kavanaugh said legal residents promptly

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Speaker 1: go free after typically brief encounters with authorities. Well, without

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Speaker 1: naming him, Sotomayor said, quote, I had a colleague in

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Speaker 1: that case who wrote, you know, these are only temporary stops.

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Speaker 1: This is from a man whose parents were professionals and

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Speaker 1: probably doesn't really know any person who works by the hour.

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Speaker 1: I've been talking to constitutional law professor David Souper of

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Speaker 1: George Law. David Sotomayor has vented her frustrations at public

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Speaker 1: events before, But this surprised me because it seemed to

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Speaker 1: be a personal attack on Kavanaugh. And you don't usually

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Speaker 1: see justices criticizing each other in public. They always claim

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Speaker 1: that they get along wonderfully.

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Speaker 2: You don't usually hear that, and I think the reason

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Speaker 2: you don't is because they're afraid that it will interfere

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Speaker 2: with their ability to work with one another in the future.

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Speaker 2: But when justices believe that there already is no ability

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Speaker 2: to work together, frustration can boil over. There are not

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Speaker 2: a lot of controversial cases on with Justice Sodomaior and

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Speaker 2: Justice Kavanaugh have been on the same side, and there

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Speaker 2: have been quite a few where it's been otherwise. But

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Speaker 2: I think that the point that she's making, perhaps more

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Speaker 2: bluntly than some would is an important point. And about

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Speaker 2: the shadow docket. Just as Kavanaugh asserted as a indisputable

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Speaker 2: fact that US citizens and legal permanent residents are immediately

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Speaker 2: let go, there's overwhelming evidence that's not true. And if

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Speaker 2: the Supreme Court was taking cases that were properly developed

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Speaker 2: in the lower courts on the facts, it would know

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Speaker 2: that's not true, and it could say we don't care,

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Speaker 2: or it could say we will allow orders designed to

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Speaker 2: make that se or it could say this means these

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Speaker 2: stops are inappropriate, but it wouldn't be able to make

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Speaker 2: absolute assertions of fact that are simply false. And if

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Speaker 2: you want to decide cases on the law, maybe there's

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Speaker 2: an argument for an emergency docket, although I don't agree

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Speaker 2: with it. But if you want to decide cases on

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Speaker 2: the fact, which he's doing there, then you have to

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Speaker 2: let the lower courts develop the facts by.

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Speaker 1: The wa are now referred to as Kavanaugh stops. Two

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Speaker 1: days later, Sodomayor said in another appearance that she has

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Speaker 1: civil relationships with virtually all of her fellow justices and

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Speaker 1: that she regards many as friends. I mean, what happens.

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Speaker 1: Do you think the next time they go into conference,

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Speaker 1: which is Friday, is there frostiness in the room on

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Speaker 1: ease or is it just you know, another conference.

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Speaker 2: I mean, these are professionals, and I'm always a little

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Speaker 2: skeptical about the claims that these people are big friends

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Speaker 2: of one another. I know Justice Ginsberg and Justice Cleia

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Speaker 2: went to the opera together, but I think that in

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Speaker 2: many ways, these are nine independent offices, each in the

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Speaker 2: same building, that interact mostly through paper and occasionally in

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Speaker 2: fairly formal ways, like oral arguments and conference. So I'm

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Speaker 2: not sure that this changes a great deal. You know,

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Speaker 2: I don't see a lot of outward evidence of much comedy.

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Speaker 2: The Court is working very very fast. I'm sure it

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Speaker 2: is jamming that the descending justices to work to all

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Speaker 2: hours to get their descents out, rather than holding up

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Speaker 2: and giving them a little bit of time, which has

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Speaker 2: been done on very very big cases in the past.

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Speaker 1: I can imagine you must be frustrated because she's on

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Speaker 1: the wrong end of the six to three decisions, you know,

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Speaker 1: so often the liberals. And she was asked by a

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Speaker 1: University of Alabama law student about how she's built bridges

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Speaker 1: with the court's conservative majority, and she said, if you

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Speaker 1: mean bridges, convince them that they're wrong. I descend so much,

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Speaker 1: I'm not very successful. Do you think the liberal justices

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Speaker 1: have sort of given up trying to convince their conservative colleagues.

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Speaker 2: No, I don't. I think that all three of the

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Speaker 2: liberal justices are very capable, very talented, and all three

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Speaker 2: of them chose to take appointments on the Court at

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Speaker 2: a time when they knew they would be in the minority.

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Speaker 2: I see no evidence that they've stopped working and on

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Speaker 2: cases where the majority doesn't have strong views, and some

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Speaker 2: of these are very important cases. You do see seven

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Speaker 2: to two, eight to one, nine to nothing decisions. And

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Speaker 2: so the Court is functioning, and the liberals are functioning,

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Speaker 2: and they have credibility with at least many of the Conservatives.

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Speaker 1: You know what I do miss. I do miss the

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Speaker 1: hot bench and also the laughs when Justice Scalia and

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Speaker 1: Justice Bryer were on the court together and trading comments

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Speaker 1: at times. Now the oral arguments are mostly very somber.

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Speaker 1: Sometimes there's a laugh, but not often.

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Speaker 2: Unfortunately, that's true of our political system more generally. You

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Speaker 2: think of funny senators, and most of them are dead,

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Speaker 2: and you think of funny presidents. I don't think any

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Speaker 2: of the last several would count as funny. Our last

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Speaker 2: funny president, I think was Ronald Reagan, who since then

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Speaker 2: really so, I think it's not surprising that the Supreme

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Speaker 2: Court's reflecting us in many ways. The Supreme Court reflects

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Speaker 2: the country, and often in ways that embarrass us. Appropriately,

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Speaker 2: it's a great point.

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Speaker 1: Finally, there is speculation that Supreme Court Justice Samuel Leto,

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Speaker 1: who's seventy six and has not announced his retirement, but

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Speaker 1: that he might retire to give a Republican president the

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Speaker 1: chance to replace him. He is the second oldest Justice,

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Speaker 1: but he's years away from the age when other justice

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Speaker 1: is retired. Justice Stephen Bryer was eighty three, Justice Anthony

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Speaker 1: Kennedy was eighty two, and Justice John Paul Stevens was ninety.

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Speaker 1: Do you think this talk of Alito retiring is just

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Speaker 1: pure speculation? You're in DC tell us.

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Speaker 2: And if there's one thing we love, it's pure speculation.

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Speaker 2: I mean, I don't know. Justice Alito is, if anything,

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Speaker 2: too young to be president of the United States, so

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Speaker 2: I don't know what he thinks. He's doing it at

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Speaker 2: age seventy six. Maybe he's gonna go for an internship somewhere,

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Speaker 2: but it's hard to know. This is an amazing job

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Speaker 2: for most of them. Justice Suitor didn't care for it,

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Speaker 2: but most of them love it. And Justice Alito is

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Speaker 2: still very sharp. He's writing opinions that reflect what he

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Speaker 2: wants to do, so it would surprise me if he

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Speaker 2: would walk away from it. And I can also imagine

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Speaker 2: that some justice is certainly the Chief Justice, urging him

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Speaker 2: not to do that because it would make it look

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Speaker 2: like a political move like he's trying to give a

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Speaker 2: seat to President Trump to fill rather than doing the

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Speaker 2: job as long as he's capable of doing it. So

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Speaker 2: I hope he's not planning to step down because that

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Speaker 2: would be a further step towards the politicization of the Court,

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Speaker 2: which does not need anymore.

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Speaker 1: And also, Alito is finally in a super solid conservative

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Speaker 1: majority where his views mesh with the majority.

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Speaker 2: You know he is, and he's getting good assignments. He's

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Speaker 2: the third most senior conservative on the Court, but the

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Speaker 2: Chief Justice and Justice Thomas are both giving him really

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Speaker 2: good assignments. From his perspective, he got to write Dobbs,

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Speaker 2: he gets to write other important opinions. Some justice have

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Speaker 2: talked about retiring because they were only given mundane cases,

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Speaker 2: but that's not his problem.

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Speaker 1: If he did retire, that would give Trump yet another

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Speaker 1: chance to appoint a Supreme Court justice. It would be

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Speaker 1: his full fourth Supreme Court appointee. I think that may

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Speaker 1: be a record.

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Speaker 2: Is first three appointees. They're not cookie cutters. They are

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Speaker 2: different in meaningful ways, and justice score such in Capitol

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Speaker 2: on statutory cases very often disagree with one another. But

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Speaker 2: I think if you look at the kinds of people

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Speaker 2: he's put in his cabinet this time versus the first

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Speaker 2: time around. All the people in his cabinet first time

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Speaker 2: around very conservative, but some of them are also very impressive.

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Speaker 2: This cabinet is certainly conservative, but it's hard to say

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Speaker 2: who is the most impressive member of his cabinet. There

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Speaker 2: just aren't very many. And I'm afraid we will get

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Speaker 2: a Supreme Court nominee who reminds us of Harold Carswell,

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Speaker 2: who the Senate declined to confirm because he was too mediocre.

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Speaker 1: I would love to hear that phrase mediocre as a

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Speaker 1: reason given in some of the conference hearings for federal judges.

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Speaker 1: We covered so many bases today, David, I always enjoy

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Speaker 1: these conversations. Thanks so much. That's Professor David Super of

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Speaker 1: Georgetown Law. And that's it for this edition of The

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

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