WEBVTT - The Shadow Docket Is As Ominous As the Name 0:00:03.200 --> 0:00:07.920 This is Bloombird Law with June Brusso from Bloombird Radio, 0:00:12.480 --> 0:00:23.479 Who knows what evil lecks in the hearts of men? 0:00:24.400 --> 0:00:27.800 From the old time radio show to TV and movies, 0:00:28.280 --> 0:00:33.960 the shadow always sounded mysterious and ominous. Fast forward to 0:00:34.080 --> 0:00:39.120 the aptly named shadow docket. Emergency orders of the Supreme Court, 0:00:39.440 --> 0:00:43.920 short and unsigned, issued without a full briefing or arguments, 0:00:44.280 --> 0:00:48.320 often late at night and without explanation. While the shadow 0:00:48.360 --> 0:00:52.760 docket certainly isn't new, it's gaining ground on the regular docket. 0:00:53.200 --> 0:00:56.120 Since August, the Court has issued more orders on the 0:00:56.120 --> 0:01:00.520 shadow docket than opinions on the merits docket. Me Cony 0:01:00.560 --> 0:01:03.800 Barrett is probably the first justice to be asked about 0:01:03.880 --> 0:01:07.200 it at her confirmation hearings. You know, the shadow docket 0:01:07.280 --> 0:01:10.560 has become a hot topic in the last couple of years. 0:01:11.319 --> 0:01:14.080 This past term, the Court has used the shadow docket 0:01:14.160 --> 0:01:18.520 to decide issues affecting millions of Americans, from abortion to 0:01:18.680 --> 0:01:22.800 voting rights to COVID policy, and the three most conservative 0:01:22.880 --> 0:01:27.160 justices have signaled they want to use it even more aggressively. 0:01:27.560 --> 0:01:31.319 My guest is constitutional law experts Stephen Vladdock, a professor 0:01:31.360 --> 0:01:35.120 at the University of Texas Law School. He's testified before 0:01:35.240 --> 0:01:38.919 Congress about the shadow docket. Steve, why are we hearing 0:01:38.959 --> 0:01:42.200 so much about the shadow docket lately? Well, I mean, 0:01:42.240 --> 0:01:44.399 I think part of it is that the Court is 0:01:44.440 --> 0:01:47.600 doing more and more significant stuff on the shadow docted. 0:01:47.640 --> 0:01:49.600 I think more of it is that, you know, folks 0:01:49.640 --> 0:01:51.800 are paying attention to it to a better degree than 0:01:51.840 --> 0:01:54.960 ever before, and the Court, for all the headlines and 0:01:55.040 --> 0:01:58.200 dramas around him, the most recent term, is actually deciding 0:01:58.240 --> 0:02:00.640 a fewer cases on the merits doctor it at any 0:02:00.680 --> 0:02:02.800 point since the Civil War. So you know, when you 0:02:02.920 --> 0:02:06.920 have a flurry of significant rulings coming down through these unsigned, 0:02:07.040 --> 0:02:10.720 often unexplained orders, it's no surprise that folks are paying 0:02:10.760 --> 0:02:12.360 a lot more attention to that part of the Supreme 0:02:12.400 --> 0:02:17.600 Court's work. Since August of one, the justices have issued 0:02:17.680 --> 0:02:23.280 sixty six emergency orders compared to sixty merits opinions. So 0:02:23.400 --> 0:02:27.360 does something seem off there or are these really emergencies? 0:02:27.680 --> 0:02:32.240 Twenty nine were related to COVID rules fifteen to executions. Well, 0:02:32.280 --> 0:02:34.520 and I think it's worth stressing that the denominator there 0:02:34.639 --> 0:02:37.480 is not necessarily telling us how often the Court's intervening 0:02:37.560 --> 0:02:39.560 I mean, so far this term, I might kind of 0:02:39.639 --> 0:02:43.800 think the Court has granted sixteen emergency applications. That's on 0:02:44.360 --> 0:02:46.560 rough paste for where we've been the last couple of years, 0:02:46.560 --> 0:02:49.280 which is twenty to twenty four per term. But even 0:02:49.320 --> 0:02:52.560 that's up dramatically over you know, prior years June. I 0:02:52.560 --> 0:02:54.799 think part of what's going on is there have been 0:02:54.840 --> 0:02:59.840 obviously a whole bunch of external causes for increased emergency delegation. 0:03:00.040 --> 0:03:01.800 You know, part of it is that because the Court 0:03:01.840 --> 0:03:04.560 is actually granted more of these applications, because more and 0:03:04.600 --> 0:03:07.360 more of these efforts are succeeding. You know, lawyers are 0:03:07.360 --> 0:03:09.520 acting as lawyers act. Lawyers are going to try to 0:03:09.600 --> 0:03:13.160 remember the application in context in which they previously would 0:03:13.160 --> 0:03:15.680 not have. And so I think we're just generally seeing 0:03:16.080 --> 0:03:20.519 an increasingly active shadow docket, be getting an increasingly active 0:03:20.560 --> 0:03:24.200 shadow docket where the more the justices seem willing to 0:03:24.880 --> 0:03:28.320 intervene early in cases to disrupt the status quo through 0:03:28.360 --> 0:03:30.560 these unsigned and usually i'll explained orders, the more the 0:03:30.560 --> 0:03:33.160 parties are going to ask them to. I think that's 0:03:33.160 --> 0:03:35.960 why we're seeing the shadow docket really start to compete 0:03:36.000 --> 0:03:40.000 with the merits docket in overall volumes. This term, the 0:03:40.000 --> 0:03:44.520 Court used the shadow docket to decide several hot button issues. 0:03:44.880 --> 0:03:48.360 Have you identified any issues you think they shouldn't be 0:03:48.400 --> 0:03:51.080 deciding on the shadow docket. It's hard to sort of 0:03:51.120 --> 0:03:53.000 say that there's an issue that should or shouldn't be 0:03:53.040 --> 0:03:54.640 for the shadow doc. And I think the question is 0:03:55.040 --> 0:03:57.720 is the case really an emergency and it's just really 0:03:57.760 --> 0:04:00.960 a context where the Court doesn't have time to hustle 0:04:01.000 --> 0:04:03.720 the matter onto the marriage docket, to give the parties 0:04:03.960 --> 0:04:07.320 time for plenary briefing, to hold oral argument, to write 0:04:07.600 --> 0:04:10.800 you know, the more conventional, lengthy opinions, and you know, frankly, 0:04:10.840 --> 0:04:12.280 I mean, one of the things about this term that's 0:04:12.320 --> 0:04:15.080 really interesting is that I think the Court has started 0:04:15.120 --> 0:04:18.360 to react to some of the criticisms of the shadow dockets. 0:04:18.440 --> 0:04:20.680 You know, two of the most significant shadow docket rulings 0:04:20.720 --> 0:04:24.480 all term where the OSHA and CMS vaccine mandate cases. 0:04:24.760 --> 0:04:27.360 And in those cases, even though those were emergency applications, 0:04:27.400 --> 0:04:29.880 the Court actually held oral argus and the first time 0:04:29.920 --> 0:04:32.560 the full Court has heard oral argument on an application 0:04:32.600 --> 0:04:34.719 since the nineties. That you know, we've seen the Court 0:04:34.880 --> 0:04:37.800 move a couple of cases from the shadow doctor to 0:04:37.839 --> 0:04:40.800 the merriage docket. That dispute in Texas over whether a 0:04:40.880 --> 0:04:43.560 death row inmates could have a religious official in the 0:04:43.600 --> 0:04:46.559 execution chamber with him who could touch him and pray 0:04:46.600 --> 0:04:50.120 over him. You know, while the execution protocol was being administered, 0:04:50.279 --> 0:04:52.240 that started on the shadow docket. The court kicked it 0:04:52.320 --> 0:04:54.400 to the merrit's docket. So two nights. I don't think 0:04:54.440 --> 0:04:57.520 we can sort of stay as an abstract matter. Issue 0:04:57.760 --> 0:04:59.680 X shouldn't be on the shadow docket. I think the 0:04:59.760 --> 0:05:02.960 real of problems is that the court is treated as 0:05:03.160 --> 0:05:06.080 emergencies saving pretrist aren't. I mean, there was a really 0:05:06.120 --> 0:05:09.479 significant April shadow docket ruling in a case about the 0:05:09.480 --> 0:05:12.359 Clean Water Act, where by a five to four votes, 0:05:12.480 --> 0:05:16.240 the Conservative justices other than Chief Justice Roberts stayed a 0:05:16.320 --> 0:05:19.400 district court order stayed an injunction that a district court 0:05:19.520 --> 0:05:23.839 in California had issued against a Trump era rule, even 0:05:23.839 --> 0:05:27.400 though the district court had ruled five months earlier, and 0:05:27.560 --> 0:05:30.160 even though the parties that were asking sport for a 0:05:30.360 --> 0:05:34.440 day hadn't shown any harm that had resulted by dint 0:05:34.520 --> 0:05:37.760 of that district court, and so, as Justice Cadian pointed 0:05:37.760 --> 0:05:39.800 out in her dissent in that case, a case called 0:05:39.800 --> 0:05:43.000 Louisiana versus American rivers. If the court's going to use 0:05:43.040 --> 0:05:46.120 the shadow docket in cases that just aren't emergencies like 0:05:46.279 --> 0:05:49.000 that case, then the shadow doctors not for emergencies at all. 0:05:49.160 --> 0:05:51.760 And all that's really happening is that these are simply 0:05:51.800 --> 0:05:55.599 disguised and even more simply reasons merit's decisions. And that's 0:05:55.600 --> 0:05:57.800 I think why there are folks like me who have 0:05:57.800 --> 0:06:00.440 become so much more publicly critical of what the court 0:06:00.520 --> 0:06:02.880 is doing in this context. Yeah, that cut my eye. 0:06:03.000 --> 0:06:06.560 Undoing an e p A rule on water quality standards, 0:06:06.720 --> 0:06:10.279 how did they even justify or they don't have to justify, 0:06:10.440 --> 0:06:15.240 guess taking that on an emergency basis, it seems outlandish. 0:06:15.440 --> 0:06:17.000 And this is exactly where we are. I mean, I 0:06:17.000 --> 0:06:21.039 think in that case of such a crystallization, where hard 0:06:21.080 --> 0:06:22.919 to see what the emergency was, given that there has 0:06:22.960 --> 0:06:26.080 been five months the district Court had ruled. Even if 0:06:26.279 --> 0:06:29.120 right the court was sympathetic to Louisian his claims on 0:06:29.160 --> 0:06:32.280 the merits, the district Court had misread the clean water 0:06:32.360 --> 0:06:36.039 after and misapplied relevant precedents about administrative law. You know, 0:06:36.240 --> 0:06:38.280 why not just put that on the marriage docket and 0:06:38.400 --> 0:06:41.080 deal with it in due court. And what's so I 0:06:41.120 --> 0:06:44.240 think strike came about that decision June is you know, 0:06:44.400 --> 0:06:46.560 you ask, you know, why did they do it right? Well, 0:06:47.000 --> 0:06:50.640 we don't know because there was no majority opinion, there 0:06:50.720 --> 0:06:52.920 was no concurrent opinion. We know it was five or 0:06:52.960 --> 0:06:56.920 only because four justices publicly joined in the dissent, and 0:06:57.040 --> 0:07:00.160 not just the three democratical points. These chief us to 0:07:00.240 --> 0:07:03.640 John Roberts, joined Justice Kiggin's The Scent, an opinion which 0:07:03.680 --> 0:07:07.040 called out the majority for in Justice Kiggan's words abusing 0:07:07.120 --> 0:07:10.200 the shadow docket. So I think what we're seeing is 0:07:10.280 --> 0:07:14.000 more and more public awareness of a trend that really 0:07:14.040 --> 0:07:18.320 started in and the Clean Water Ract case is especially 0:07:18.400 --> 0:07:21.080 I think Goland because the decision came just two days 0:07:21.200 --> 0:07:24.320 after Justice Barrett gave this speech at the Ronald Reagan's 0:07:24.320 --> 0:07:26.640 Presidential Library where she says, you know, if you really 0:07:26.640 --> 0:07:30.240 think we're politicians in robes and not judges, read our opinion. 0:07:30.520 --> 0:07:32.640 Read the opinion and see for yourself if there are 0:07:32.680 --> 0:07:36.120 legal principles driving our decision making. Well, two days later, 0:07:36.160 --> 0:07:38.560 she is the decisive vote in the Clean Water Ract case, 0:07:38.600 --> 0:07:41.400 in which there was no opinion to read and in 0:07:41.440 --> 0:07:46.320 some of these cases, you have lower courts having trials 0:07:46.440 --> 0:07:49.320 on these issues, and then the Supreme Court comes along 0:07:49.360 --> 0:07:54.120 and says, no, we're reversing that, without oral argument, without 0:07:54.120 --> 0:07:57.320 any explanation. It's I don't know what else to say 0:07:57.320 --> 0:08:01.000 that it's sort of jaw dropping. The key is that 0:08:01.080 --> 0:08:02.559 I think there are a lot of folks out there 0:08:02.560 --> 0:08:05.040 who think that all that matters is the bottom line. 0:08:05.080 --> 0:08:06.800 And so if I say that the bottom line is okay, 0:08:06.840 --> 0:08:08.480 then I don't care about how the court cut there, 0:08:08.680 --> 0:08:11.640 but the process matters here. There's a more recent Louisiana 0:08:11.720 --> 0:08:14.600 case about redistrict in that I think is really instructive here. 0:08:14.640 --> 0:08:16.840 So Louisiana, you know, like a number of states, is 0:08:16.920 --> 0:08:21.960 redrawing its congressional districts after and in life of a 0:08:22.040 --> 0:08:26.080 district court, after an extensive hearing, writes this one hundred 0:08:26.120 --> 0:08:29.640 and fifty two page decision that carefully sets out why 0:08:29.760 --> 0:08:33.080 he believed Louisiana's maps violated the voting rights. That why 0:08:33.120 --> 0:08:35.920 he believed Louisiana was required to draw at least one 0:08:35.960 --> 0:08:40.280 more so called majority minority district to avoid violating steps 0:08:40.280 --> 0:08:42.000 in two of the voting right back. And it is 0:08:42.040 --> 0:08:46.320 a full bore full sorted analysis. Louisiana asked the Fifth Circuit, 0:08:46.400 --> 0:08:49.640 the most conservative pelic court in the country, to stay 0:08:49.720 --> 0:08:52.280 that district court decisions so we can use those maps 0:08:52.320 --> 0:08:55.840 in the two elections. And the Fifth Circuit refuses to 0:08:55.880 --> 0:08:58.719 issue a stay and writes thirty three pages of its 0:08:58.720 --> 0:09:01.800 own about why, in its view, the district Court decision 0:09:01.960 --> 0:09:03.719 was at the very least not set it to a 0:09:03.800 --> 0:09:06.480 stay and maybe even correct. And then Louisiana goes to 0:09:06.480 --> 0:09:08.800 the Supreme Court and says, hey, Supreme Court, will you 0:09:08.920 --> 0:09:12.400 stay the district court decision? And the Supreme Court stays 0:09:12.400 --> 0:09:15.679 the distric Court decision with narrow a sentence of explanation. 0:09:16.000 --> 0:09:18.720 And so you have district courts, you know, doing their job, 0:09:18.880 --> 0:09:22.920 working really really hard, writing really really thorough opinions. You 0:09:22.960 --> 0:09:26.520 have the appeals courts doing their job writing thorough opinions. 0:09:26.960 --> 0:09:31.360 And there's the Supreme Court, which in one sentence just says, nahum, 0:09:31.600 --> 0:09:33.920 you know, I don't see how that is a legal 0:09:33.920 --> 0:09:37.200 system that is going to increase public confidence in the 0:09:37.200 --> 0:09:40.199 Supreme Court as an institution versus the notion that was 0:09:40.240 --> 0:09:42.760 a sort of the synecolon non of the Supreme courts 0:09:42.840 --> 0:09:46.560 legitimacy is its ability to explain itself. Did Justice Kavanaugh 0:09:46.600 --> 0:09:49.840 try to make a distinction between, you know, how fast 0:09:49.880 --> 0:09:52.320 the election was coming up? In one of those cases, 0:09:53.040 --> 0:09:55.640 there's an Alabama case from earlier this term where Justice 0:09:55.679 --> 0:10:00.199 Kavanaugh wrote a concurrence in the unsigned on its lay 0:10:00.200 --> 0:10:03.640 in Supreme Court order staying a similar ruling in Alabama. 0:10:03.640 --> 0:10:05.160 I mean, you had so the Albama cases in some 0:10:05.240 --> 0:10:09.120 respects even more egregious, where you know, Alabama, a bunch 0:10:09.160 --> 0:10:13.240 of Alabama voters the day after Governor Ivy signs the 0:10:13.280 --> 0:10:16.439 congressional maps into law, they filed suit, like they filed 0:10:16.440 --> 0:10:18.840 to literally as soon as they could. The case goes 0:10:18.880 --> 0:10:22.240 to a three judge district court, which is comprised, I 0:10:22.240 --> 0:10:26.120 think entirely of Trump appointees. The district court says these 0:10:26.120 --> 0:10:29.079 maps violate the voting right that and you know, it's 0:10:29.080 --> 0:10:30.599 just a lengthy opinions that you know, you've got to 0:10:30.679 --> 0:10:33.920 draw him again. And the Supreme Court stays that order. 0:10:34.400 --> 0:10:37.040 But what's crazy, as Kavanaugh's concurrence relies on this thing 0:10:37.040 --> 0:10:41.320 called the personel principle and the for self principle is this, 0:10:41.440 --> 0:10:43.760 you know, based on the two thousand and six shadow 0:10:43.800 --> 0:10:47.720 docket ruling UM that federal court should not change the 0:10:47.800 --> 0:10:51.840 rules for elections as the elections approach. Well, in the 0:10:51.880 --> 0:10:56.079 Alabi on the case, the elections were nine months away, um, 0:10:56.120 --> 0:10:58.720 And even the primaries, which could have been moved if 0:10:58.760 --> 0:11:02.079 they had to be, were four months away. And so 0:11:02.160 --> 0:11:05.160 you know, yeah, Justice Kavanaugh, I think I remember, joined 0:11:05.200 --> 0:11:08.280 by Justice Alito. You know, it writes the short concurrence 0:11:08.360 --> 0:11:11.079 trying to justify at least why the two of them 0:11:11.240 --> 0:11:13.920 voted for a day. But if anything like they're concurring, 0:11:13.960 --> 0:11:17.320 opinion raises more questions than it answers, because you know, 0:11:17.600 --> 0:11:20.480 if Purcell applies that far in a dance of an election, 0:11:21.000 --> 0:11:23.440 then how can you ever have an injunction in a 0:11:23.520 --> 0:11:25.240 dance of an election that's going to be effect is 0:11:25.400 --> 0:11:29.520 And you know, I think that part of the problem 0:11:29.559 --> 0:11:33.240 here is that when you have either no explanation as 0:11:33.240 --> 0:11:36.679 in Louisiana case, or explanations that just don't hold up 0:11:36.679 --> 0:11:40.640 to scrutiny, as in the Kavanaugh concurrence in the Alabama case, 0:11:41.000 --> 0:11:44.520 you know, June, for those who want to see partisanship 0:11:44.840 --> 0:11:49.280 and rank politics, there's nothing to disabuse them of that conclusion. 0:11:49.320 --> 0:11:52.559 There's no analysis to point in other direction. No one 0:11:52.559 --> 0:11:55.400 can say, well, you know, that's just because you disagree 0:11:55.400 --> 0:11:57.320 with how the Court is explaining itself. Well, if the 0:11:57.320 --> 0:12:01.040 courts not explaining itself, what is there to disagree? Looking 0:12:01.040 --> 0:12:05.120 at the numbers and the partisan splits the courts. Liberal 0:12:05.200 --> 0:12:09.880 justices Stephen Bryer, Sonya Soto Mayor, and Atlanta Kagan dissented 0:12:09.880 --> 0:12:14.040 the most in emergency orders that were granted, but conservative 0:12:14.160 --> 0:12:18.679 justices Clarence Thomas, Samuel Alito, and Neil Gorsich did so 0:12:18.760 --> 0:12:21.840 the most when the Court refused to act on appeal. 0:12:22.200 --> 0:12:24.520 So what does that tell you? One of the many 0:12:24.640 --> 0:12:26.880 interesting things about the shadow doctors, I think there's in 0:12:26.920 --> 0:12:31.240 some respects more interesting data about the justices voting patterns 0:12:31.600 --> 0:12:33.880 than there is on the merits docket. So there was 0:12:33.960 --> 0:12:36.840 this remarkable moment last October. There was a case out 0:12:36.840 --> 0:12:40.200 of made called Does versus Mills. It was a challenge 0:12:40.240 --> 0:12:43.240 by US, the main healthcare workers, to the state's mandate 0:12:43.320 --> 0:12:46.160 that healthcare represent the states be vaccinated. And there was 0:12:46.240 --> 0:12:50.120 like a one paragraph concurring opinion by Justice Barrett, joined 0:12:50.120 --> 0:12:53.559 by Justice Kavanaugh that basically said, just because we're sympathetic 0:12:53.679 --> 0:12:56.040 to your claims on the merits. Doesn't mean we're automatically 0:12:56.080 --> 0:12:58.319 going to vote to grant emergency relief. You know, we're 0:12:58.320 --> 0:13:01.160 going to exercise some modicum of this suppression and deciding 0:13:01.240 --> 0:13:04.319 when emergency release isn't as imporanted. Basically, Barrett and Kavanaugh 0:13:04.400 --> 0:13:06.880 laying down a marker that they were going to not 0:13:07.080 --> 0:13:09.440 vote to grant emergency release as often as they had 0:13:09.480 --> 0:13:11.720 today as recently as the previous term and June we've 0:13:11.760 --> 0:13:13.560 seen that play out. I mean, we've seen a number 0:13:13.600 --> 0:13:17.320 of cases since October where the only public dissenters from 0:13:17.320 --> 0:13:20.600 a denial of relief were Thomas A Leader and Gorsage, 0:13:20.640 --> 0:13:23.040 And so the assumption is that Barrett and Kavanaugh did 0:13:23.080 --> 0:13:26.040 not join them. Some of these have been vaccine mandate cases, 0:13:26.320 --> 0:13:28.640 you know, the Navy Seals cases a good example of that. 0:13:28.960 --> 0:13:31.440 Some of them have been cases about like for example, 0:13:31.480 --> 0:13:34.360 Texas is social media law, and in that respect, again, 0:13:34.400 --> 0:13:36.720 I think one of the stories of the October one 0:13:36.840 --> 0:13:38.560 term is that the Court has at least to some 0:13:38.760 --> 0:13:42.880 de moderated its shadow doctor behavior. But I actually think 0:13:42.960 --> 0:13:45.840 in some respects even the moderated version of it is 0:13:46.040 --> 0:13:48.880 just as problematic as you know, what we saw, for example, 0:13:48.960 --> 0:13:51.360 during the October term, and the fact that Thomas the 0:13:51.440 --> 0:13:54.320 Leader and Gorges would go further and would grant emergency 0:13:54.320 --> 0:13:56.880 release even more often. I think, because you know, a 0:13:56.960 --> 0:13:59.200 sign of how close we are to this being even 0:13:59.240 --> 0:14:01.440 more of a problem already is so, then do the 0:14:01.480 --> 0:14:05.320 lineups on the shadow docket differ from the lineups in 0:14:05.679 --> 0:14:09.000 merits cases. There's a tendency when folks think about the 0:14:09.000 --> 0:14:10.920 court to think about the stick three chord or the 0:14:11.040 --> 0:14:14.320 three three three court, and I think that's not quite 0:14:14.520 --> 0:14:16.240 fair on the shadow doctor. I mean, one of the 0:14:16.280 --> 0:14:19.520 things that we saw again this term was Chief Justice 0:14:19.600 --> 0:14:22.560 Roberts joining with the Liberals a number of times in 0:14:22.680 --> 0:14:25.480 dissenting from shadow doctet orders. And so I think the 0:14:25.480 --> 0:14:28.400 shadow docket, as much as anywhere else, is basically as 0:14:28.520 --> 0:14:31.200 goes Kavanaugh and Barrett, so goes the Court. And you know, 0:14:31.200 --> 0:14:33.240 one of the things the striking numbers of the whole 0:14:33.360 --> 0:14:37.400 term is every justice dissented at least once June in 0:14:37.440 --> 0:14:41.000 a merit's case. I think the fewest was three by 0:14:41.040 --> 0:14:43.640 Kavanaugh in the Chief. But on the shadow docket there 0:14:43.760 --> 0:14:47.360 wasn't a single shadow docket order all term from which 0:14:47.400 --> 0:14:50.400 Justice Kavanaugh publicly dissented, and I think that's a sign 0:14:50.640 --> 0:14:53.520 of the times. I think that's a sign of who's 0:14:53.560 --> 0:14:56.600 basically the critical vote in shadow doctet context. And I 0:14:56.640 --> 0:14:59.760 think it's all the more reason to be wary about 0:14:59.760 --> 0:15:02.600 a fourth that's not explaining itself, given that. You know, 0:15:02.640 --> 0:15:05.600 when Justice Kavanaught is right in on the shadow docket, 0:15:06.000 --> 0:15:09.480 as in the Alabama redistrictive case, his opinions are often, 0:15:10.320 --> 0:15:14.680 shall we say, not exactly satisfied in providing a coherent, 0:15:14.960 --> 0:15:18.840 sort of defensible forward looking that explanation, Thanks so much, Steve. 0:15:19.120 --> 0:15:22.840 That's Professor Stephen Vladdock of the University of Texas Law School. 0:15:24.400 --> 0:15:28.200 Remember back in May when Elon Musk tried some legally 0:15:28.600 --> 0:15:32.240 to describe his claim that Twitter breach there forty four 0:15:32.280 --> 0:15:35.920 billion dollar buyout deal. You know, it's a material abvers 0:15:36.080 --> 0:15:39.400 uh misstatement. You know, if if if they in fact 0:15:40.400 --> 0:15:44.320 have been um for surferously claiming less than five of 0:15:44.600 --> 0:15:46.960 VEGERSPAM accounts, but in fact it is four or five 0:15:47.000 --> 0:15:50.240 times that number, or perhaps ten times that number. This 0:15:50.320 --> 0:15:52.960 is a big deal. It is a big deal. But 0:15:53.040 --> 0:15:56.360 the Delaware Chance to Record is treating it just like 0:15:56.560 --> 0:15:59.840 any other big deal. It handles, and the indication is 0:15:59.840 --> 0:16:03.000 that the judge doesn't think that counting bots is the 0:16:03.040 --> 0:16:06.240 main issue. Joining me is Eric Tallely, a professor at 0:16:06.280 --> 0:16:10.480 Columbia Law School. So Eric Musk lost the first round 0:16:10.520 --> 0:16:14.080 in court, the Chief Judge, Kathleen McCormick put the case 0:16:14.120 --> 0:16:18.200 on the fast track, with trial scheduled for October. What 0:16:18.240 --> 0:16:20.920 do you think is the real reason Musk wanted to 0:16:21.000 --> 0:16:25.880 delay until February or was it delayed just for delays sake? Yeah, 0:16:25.960 --> 0:16:28.760 I think there was definitely a part of the strategy 0:16:28.920 --> 0:16:33.040 that really just wanted to create additional uncertainty. I think 0:16:33.320 --> 0:16:35.720 a lot of people who have tried to size up 0:16:35.800 --> 0:16:39.200 this case suggest that Mr Musk is sort of fighting 0:16:39.200 --> 0:16:42.360 an uphill battle right now. I think the idea, you know, 0:16:42.640 --> 0:16:46.880 was probably first and foremost just to elongate the clock 0:16:47.000 --> 0:16:50.000 so that, you know, possibly more information could come out, 0:16:50.080 --> 0:16:53.800 so that there would be greater possibilities to mine into 0:16:53.840 --> 0:16:58.120 the spam account and body count data and possibly you know, 0:16:58.440 --> 0:17:01.280 pull a rabbit out of the hat where a rabbit 0:17:01.360 --> 0:17:04.320 really hasn't been there. Thus part now there's a second 0:17:04.359 --> 0:17:08.359 possible reason to try to elongate the proceedings, which is 0:17:08.440 --> 0:17:14.359 that Mr Musk's own financing, by its very terms, expires 0:17:14.600 --> 0:17:18.000 in the spring of two thousand twenty three, and if 0:17:18.040 --> 0:17:22.640 the financing expires of its own terms, that could potentially 0:17:22.840 --> 0:17:26.400 change a lot of the potential remedies that are available. 0:17:26.480 --> 0:17:29.320 It could make it harder, for example, to have a 0:17:29.359 --> 0:17:34.040 specific performance decree when there's no longer any financing in 0:17:34.040 --> 0:17:39.119 the picture. Briefly, what were each side's argument for Twitter 0:17:39.200 --> 0:17:41.960 for why it wanted an expedited trial and must for 0:17:42.040 --> 0:17:45.160 why he wanted to know until February. Yeah, I think 0:17:45.160 --> 0:17:49.520 that that the Twitter account was was relatively unsurprising in 0:17:49.640 --> 0:17:54.480 terms of of of where uh Twitter's lawyer Bill Sabbatt 0:17:54.600 --> 0:17:58.639 was going to. The expediting of a trial in a 0:17:58.800 --> 0:18:03.960 large commercial litigation cases actually pretty frequent in Delaware, particularly 0:18:04.000 --> 0:18:07.320 when it comes to UH, to these so called busted 0:18:07.400 --> 0:18:11.400 deal cases. You basically have to say, look, we've got, um, 0:18:11.800 --> 0:18:14.280 what's known as a colorable claim, which is a pretty 0:18:14.320 --> 0:18:18.000 low standard, because we've we've alleged some things that um, 0:18:18.080 --> 0:18:19.800 you know, if we improve them, they're gonna they're gonna 0:18:19.840 --> 0:18:25.000 hold water. Uh. And the second is that that they 0:18:25.040 --> 0:18:30.440 are ongoing uh suffering some type of an irreparable harm 0:18:30.520 --> 0:18:34.000 if they don't get resolution of the case. And uh, 0:18:34.040 --> 0:18:37.560 you know, in in many respects, both of those things were, uh, 0:18:37.720 --> 0:18:40.640 we're already out there kind of in the public domain. 0:18:41.119 --> 0:18:46.840 The colorable claim was relatively straightforward. And Uh, and the 0:18:47.440 --> 0:18:49.680 fact that you know, Twitter was kind of in this 0:18:49.840 --> 0:18:52.280 state of limbo for a long period of time and 0:18:52.320 --> 0:18:54.600 continues to be in the state of limbos. We don't 0:18:54.600 --> 0:18:59.040 know exactly what's happening with this deal means that employees 0:18:59.160 --> 0:19:02.639 may be leaving, that commercial clients may be leaving, that 0:19:02.720 --> 0:19:06.320 the user base may be growing uncertain about what uh 0:19:06.480 --> 0:19:09.600 to expect in terms of Twitter, and and and those 0:19:09.600 --> 0:19:13.399 are the types of arguments that Twitter's lawyers said, you know, 0:19:13.520 --> 0:19:19.359 really do justify expediting the process. Moreover, they said, you know, 0:19:19.400 --> 0:19:22.080 we we even in the merger agreement said you know, 0:19:22.240 --> 0:19:25.800 we're going to have a termination date in October. And 0:19:25.840 --> 0:19:29.520 that also is a signal that we wanted this resolved quickly. 0:19:30.320 --> 0:19:34.720 Must's attorneys, um, you know, somewhat unsurprisingly, said well, you know, 0:19:35.200 --> 0:19:39.040 we really want to make this case about how do 0:19:39.119 --> 0:19:43.280 you measure bought accounts? Now, Uh, there's a big issue 0:19:43.320 --> 0:19:46.879 about whether that's even going to be a central aspect 0:19:46.880 --> 0:19:51.760 of this case because you know, the contract itself doesn't 0:19:51.760 --> 0:19:55.320 really even talk about bought accounts, but certainly, UH, team 0:19:55.400 --> 0:19:58.040 Must has been trying to inject that into the picture, 0:19:58.440 --> 0:20:01.760 and to the extent they can. UH, Must's attorneys argued, 0:20:02.000 --> 0:20:03.840 you know, it's going to take a long time to 0:20:03.880 --> 0:20:06.200 try to vet all the data, to try to bring 0:20:06.240 --> 0:20:08.920 in experts to try to understand what's going on with 0:20:08.960 --> 0:20:12.520 the data. And so, you know, somewhat unavoidably, I think 0:20:13.040 --> 0:20:16.040 Must's lawyers, you know, kind of had to make the 0:20:16.119 --> 0:20:21.720 issue of you know, measuring bought accounts something that that uh, 0:20:21.800 --> 0:20:24.760 you know, um they could convince the judge was sort 0:20:24.800 --> 0:20:28.960 of a fore ordained challenge in this case. And uh 0:20:29.000 --> 0:20:31.159 and then the second thing that they that they argued 0:20:31.320 --> 0:20:33.840 is that you know, don't take don't read too much 0:20:33.840 --> 0:20:37.800 into this October termination date that we got into, uh, 0:20:37.840 --> 0:20:40.879 into the contract, because if you look into the terms, 0:20:40.920 --> 0:20:44.560 that that date just continues to get moved forward and 0:20:44.640 --> 0:20:48.440 pushed forward if there's litigation around UH this deal, which 0:20:48.440 --> 0:20:52.560 there now is. So really the the real deadline is 0:20:52.600 --> 0:20:55.240 the deadline for the financing in the spring of two 0:20:55.320 --> 0:20:58.520 thousand twenty three, and and none of those is a 0:20:58.680 --> 0:21:00.800 terrible argument. You know, I I think there is a 0:21:00.840 --> 0:21:05.240 sense in which, you know, the allegations about bought accounts, 0:21:05.680 --> 0:21:08.560 you know, even though they are in many ways peripheral 0:21:08.600 --> 0:21:12.480 to the contract, Musk's attorneys are definitely going to be 0:21:12.520 --> 0:21:14.720 trying to concentrate on that. So there are going to 0:21:14.800 --> 0:21:20.199 be additional arguments about that, and uh and the attorneys 0:21:20.240 --> 0:21:23.160 for for Mr Musk were actually pretty good, I think, 0:21:23.200 --> 0:21:25.879 in in in in you know, taking a little bit 0:21:25.920 --> 0:21:28.439 of the attention off of the idea that you know, 0:21:28.480 --> 0:21:32.200 we had to settle everything by this October termination day, 0:21:32.320 --> 0:21:34.280 just you know, the terms of the contract were a 0:21:34.320 --> 0:21:37.640 little bit more flexible to that. Did the judge give 0:21:37.680 --> 0:21:41.119 Twitter everything they were looking for? She largely gave the 0:21:41.160 --> 0:21:43.760 Twitter attorneys what they were looking for, but not quite. 0:21:43.840 --> 0:21:47.120 She said, Look, the proposed schedule that the Twitter attorneys 0:21:47.119 --> 0:21:50.880 have put forward is somewhat aggressive relative to what we've 0:21:50.920 --> 0:21:55.200 seen in past practice. She sort of surveyed other cases 0:21:55.320 --> 0:21:59.040 that you know, had been filed in similar situations and said, 0:21:59.080 --> 0:22:02.200 look at these other ones. You know, they're big, they're expensive, 0:22:02.359 --> 0:22:05.200 they're complicated, but we still are able to get them 0:22:05.200 --> 0:22:08.120 done between you know, sixty and ninety days and that's 0:22:08.160 --> 0:22:11.320 what I'm going to apply here as well. I don't 0:22:11.359 --> 0:22:14.840 see any reason why we have to use a different 0:22:14.880 --> 0:22:17.840 set of rules than has applied to these other cases. 0:22:18.600 --> 0:22:21.840 We now know how to adapt to COVID. If there's 0:22:21.920 --> 0:22:24.720 a spike and infections and we have to do things 0:22:24.720 --> 0:22:26.679 over zoom, we know how to do that as well. 0:22:26.960 --> 0:22:29.919 So I have great faith chance for McCormick set in 0:22:29.960 --> 0:22:33.840